Kerala High Court
Teena vs State Of Kerala on 16 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
CRL.A NO.917 OF 2020
AGAINST THE JUDGMENT IN S.C.NO.882/2017 OF THE COURT OF
ADDITIONAL DISTRICT & SESSIONS JUDGE, ERNAKULAM
[FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL
VIOLENCE AGAINST WOMEN AND CHILDREN]
(CP 19/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY)
(CRIME NO.901/2016 OF ANGAMALI POLICE STATION, ERNAKULAM)
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APPELLANT/ACCUSED:
TEENA, AGED 37 YEARS, W/O.BAIJU,
PANAGATTUPARAMBIL HOUSE,
NEAR CHAPPEL, KOKKUNNU KARA,
MOOKKANNUR VILLAGE.
BY ADVS.
SRI.P.K.VARGHESE
SMT.M.B.SHYNI
SMT.SANJANA RACHEL JOSE
RESPONDENT/ RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY ADVS.
SMT.AMBIKA DEVI .S., SPL.GOVERNMENT PLEADER
(FOR ATROCITIES AGAINST WOMEN AND CHILDREN
AND WELFARE OF WOMEN AND CHILDREN)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2022,
THE COURT ON 16.02.2022 DELIVERED THE FOLLOWING:
Crl.Appeal No.917 of 2020
2
K. Vinod Chandran & C.Jayachandran,JJ CR
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Crl.Appeal No.917 of 2020
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Dated, this 16th February, 2022
JUDGMENT
Vinod Chandran, J.
'God could not be everywhere and therefore he made mothers';
wrote Rudyard Kipling. But quiet paradoxical and tragic,
is the story projected before us of a mother having
murdered her nine year old; an only child. When a woman
kills her progeny there is more than that meets the eye;
which sensitivity, often, the investigators lack.
2. The charge against the accused was that due to
marital discord, to wreck vengeance against her husband,
the accused killed her son and for reason of her
distressing married life, she attempted suicide at around
10'O clock on 30.04.2016. The accused administered
sleeping pills (Nitrest 10mg) to her unsuspecting child,
and while he was dozing, slit the vein on his left hand
with a razor blade. The child woke up and he was
smothered with a turkey towel. Later the accused consumed
Crl.Appeal No.917 of 2020
pesticide and with the very same razor blade, slit the
vein on her right hand with the intention of committing
suicide. The prosecution examined twenty seven witnesses,
marked Exts P1 to P32 documents and produced Material
Objects MO1 to MO5. The defence examined DW1 and the
Court suo motu under S.311 Cr.P.C, summoned two
witnesses; one for re-examination. The case sheet of the
accused at the Hospital was marked as Ext. C1. The trial
court found the accused guilty of the offences charged
under S.302 and 309 of the IPC and sentenced her to life
and six months simple imprisonment respectively, together
with a fine under S.302 and a default sentence.
I. THE CONTENTIONS
3. Sri.P.K.Varghese, learned Counsel who appeared for
the accused, argued that the trial court's findings are
quiet contrary to the evidence led; which in fact
exonerates the accused from the offence of murder. The
reliance placed on the alleged dying declaration is
impermissible. In any event Ext.P28 as spoken of by PW27
says nothing about cause of death; as evidenced from the
Crl.Appeal No.917 of 2020
post-mortem examination. PW15, the Doctor who conducted
the post-mortem examination and marked Ext.P12 report
clearly stated the cause of death as smothering. The
alleged dying declaration does not speak of smothering.
Further death having not occasioned to the declarant, the
declaration does not qualify as one under S.32 of the
Evidence Act. It cannot be treated as a confession, since
the provisions under S.164(2)&(4) have not been complied
with. The husband, PW8, entered the house after opening
the locked front door, to see his wife lying supine and
bleeding in the front hall. He did not look around for
the son and only later, when a neighbour enquired, he
went in search of the boy. PW8 was careful to create an
alibi by asking his neighbour as to whether his wife was
available in the house; before he entered his own house.
While the prosecution relies heavily on the admission of
the accused, regarding administration of sleeping pills
and cutting the vein on the boy's hand; there was no
investigation carried out regarding the smothering. If
the accused admitted to the other acts, ordinarily, it
Crl.Appeal No.917 of 2020
would have been spoken of by the accused; if, she
smothered the child. The extra judicial confession is
suspect and so is the medicine strip recovered by Ext.P6.
PW 4, the witness did not see the accused handing over
the strip and he also does not remember where he signed
the mahazar; at the house or the Police Station. The
recovery by Ext.P6 was on 12.05.2016, before which on
01.05.2016, the just next day of the occurrence, the
entire house was examined with a fine tooth-comb, by the
I.O as evidenced from Ext.P5 scene mahazar. The recovered
strip contained a half tablet, while Ext.P32 chemical
examination report speaks of an empty strip having been
received for examination. The learned Counsel would
heavily rely on the evidence of DW1, the Psychiatrist who
examined the accused at the hospital from which hospital
Ext.C1 case sheet was issued.
4. The learned Counsel attacked the manner in which
the trial court invoked the power under S.311;
specifically pointing out Ground D in the appeal
memorandum. It is stated that after arguments were over,
Crl.Appeal No.917 of 2020
the case was posted for judgment and without any notice
it was reopened and summons issued to two witnesses, one
of whom was earlier examined. It is alleged that the
learned Judge stepped into the shoes of the prosecutor to
somehow convict the accused. Ext.C1 case sheet is
tampered with by PW20, on his own saying and also by
unknown persons. There can be no credibility attached to
the narration of the history of occurrence by the accused
in Page 11 of Ext.C1. It is pointed out that even as per
the evidence of PW20, he examined the patient in the
Casualty, who was later referred to the Medical ICU
[MICU] by another Doctor as evidenced from sheet number
10 of the case sheet. Page No.12 also indicates the
notations made in the ICU and Page No.11 is clearly an
interpolation. The Doctor who conducted post-mortem
examination opined the cause of death to be smothering.
He affirmed the absence of poisonous substances in the
body and the cut on the left wrist of the boy to be
insufficient to cause death. On the mandatory compliance
of S.164(2)to(4)the learned Counsel relies on Shivappa v.
Crl.Appeal No.917 of 2020
State of Karnataka [(1995) 2 SCC 76], Parmanand Pegu v.
State of Assam [(2004) 7 SCC 779], and State of Punjab v.
Harjagdev Singh [(2009) 16 SCC 91]. The efficacy of the
alleged dying declaration is challenged placing reliance
on Kishan Lal v. State of Rajasthan [(2000) 1 SCC 310]
and Parmanad Pegu (supra).
5. Smt. S Ambikadevi, learned Senior Government
Pleader (Atrocities against Women and Children) first
urged that though a case built up entirely on
circumstantial evidence, the accused is the mother and
the victim is her own nine year old son. The child and
the mother were seen together between 10.00 and 11.15 a.m
in the backyard of their house by PW6. It is argued that
the declaration is not a confession under Section 164,
but still has relevance under Section 21 of the Evidence
Act. A dying declaration is considered credible since the
person anticipating death, would not want to leave this
world with a lie in her lips. Viewed in this context, the
accused had truthfully spoken of what transpired which
clearly is admissible. Reliance is placed on Ammini V.
Crl.Appeal No.917 of 2020
State of Kerala [(1998) 2 SCC 301]. In addition to
Ext.P28 dying declaration recorded by a Magistrate, the
accused had spoken of the incident to the Doctor, which
is an extra judicial confession. It has been established
that the child was administered sleeping pills and the
veins of his left hand were cut, which is more than proof
of the intention of the mother, who was last seen
together with the child and was alone in the house with
the child. The accused had totally denied the allegations
and the incriminating evidences and even the factum of
her having worked as a Pharmacist which is established
beyond doubt by PWs.9 to 12.
6. That the child was murdered by smothering is
very clear in the postmortem certificate which speaks of
'petechial hemorrhages' in both the lungs and heart; the
breaking open of capillaries due to asphyxia. A turkey
towel, recovered from the cot where the child was lying
was used for smothering. The learned counsel castigates
the defence for having tried to implicate the husband,
after having murdered the little child. The
Crl.Appeal No.917 of 2020
administration of sleeping pills and the slitting of the
veins definitely leads to an inference that the
smothering was also done by the accused. The admissions
of the accused were in a conscious state and she has been
certified to be capable of lucid understanding by the
Physician who examined her at the first hospital. The
denial of admitted facts and the attempt to frame the
husband, without any proof, provides additional links in
the chain of circumstances. PW20 signed page 7 of Ext.P1
series and normally there would be other Doctors attached
to the casualty who would also examine the patient. To
impress upon us, the relevance of Section 106 of the
Evidence Act State of West Bengal V. Mir Mohammad Omar
[(2000) 8 SCC 382] is relied on. There is no explanation
offered by the accused regarding the cause of death of
the child and her own condition. Trimukh Maroti Kirkan V
State of Maharashtra [(2006) 10 SCC 681] is relied to
canvass the position of last seen together theory. While
it is strongly urged for dismissal of the appeal,
confirming the conviction and sentence under Section 302
Crl.Appeal No.917 of 2020
and 309; the learned Counsel would also remind us that
the admitted actions of the accused would at least
attract Section 307; if this Court opines otherwise on
Section 302.
II. THE EVIDENCE:
7. The FIS was by PW1, the brother of the accused.
The FIS speaks of the accused having killed her 9 year
old son by cutting the veins of his hands and later
attempting suicide; obviously hearsay. PW1 was in his
family house, when in the night during prayer time, a
call came in his mother's telephone. He gave the phone to
his mother since it was his brother-in-law calling. The
mother informed the family that his sister and her son
passed away. PW1 immediately called a relative who lived
near his sister and she merely responded that all is
lost. He rushed to the Little Flower (L.F) Hospital and
saw his sister. The Doctor informed him that his sister
had consumed poison and also slit her veins. He also saw
his nephew's body in the Mortuary. Even at that point he
spoke of physical torture by the husband on his sister
Crl.Appeal No.917 of 2020
and presumed that she would have killed her son and
attempted suicide, when it became intolerable.
8. PW1, before Court, elaborated on the unhappy
marital life of his sister, made worse by the drunkenness
of her husband [PW8]. There was an incident in which PW8
faced his wife and son with a knife; which led to his
admission in a Mental Hospital. PW1 spoke of a wordy
altercation on the night of his marriage, on 25.04.2016,
after which PW8 left with his wife and son. Two days
later, when his mother called his sister, she complained
of physical torture. He admitted Ext.P1, but denied
Exts.P2 and P3 contradictions marked. Ext.P2 was his
prior statement that the murder of the child and the
attempt to suicide must have been due to the depression
arising from an unhappy married life. Ext.P3 is his
statement that when he asked the people gathered in the
Hospital, he was told that, his brother-in-law returned
from work to see his wife and son lying with their veins
slit in a bad condition, that, since his sister had
consumed poison and was unconscious she was brought to
Crl.Appeal No.917 of 2020
the L.F Hospital for further treatment. Before Court, he
also deposed that when he talked to his sister on May 3 rd,
he was informed that on 30.4.2016, in the after noon, PW8
came home drunk and started beating her and the child.
PW8 was accused of forcefully pouring poison into his
wife's mouth, which was informed to the police on the
very next day and a formal complaint made to the C.I of
Police.
9. PW2 witnessed the inquest and marked the
report, Ext.P4 and PW3, witnessed the scene mahazar,
Ext.P5 dated 01.05.2016. PW4 is the immediate neighbour,
who was not present when the mother and child were
detected injured. Being informed of the mishap at around
8.30 p.m, he went to MAGJ Hospital, to see the accused in
an unconscious state. His wife informed him that PW8, in
the evening, enquired whether there was anybody in his
house. Later, PW8 was heard screaming, upon which PW.4's
wife rushed to the neighbouring house and saw the accused
lying in the hall, bleeding. PW4 witnessed the recovery
of an empty packet of tablets from the waste bin in the
Crl.Appeal No.917 of 2020
kitchen. However, the Mahazar, though seen to have been
confronted to the witness, was not marked. The material
object recovered was also not confronted to the witness
for reason of the same having not being returned from the
Forensic Science Laboratory (FSL). PW4 in cross
examination said that he does not remember from where he
signed the mahazar - at the police station or the house
itself.
10. PW5 is an auto driver who responded to the
summons of a neighbour and took the injured child to the
MAGJ Hospital, where the child was declared dead. PW6 is
the wife of PW4 and a neighbour whose house is on the
backside of the house of the accused. She saw the accused
and her son between 10.00 and 11.15 a.m, on their
backyard. PW6, her husband and PW7, responded to the
screams of PW8, to find the accused lying in the hall,
bleeding. PW6 claimed ignorance about the marital life of
the accused, but admitted knowledge of PW8 having been
admitted to a de-addiction centre. PW7, the wife of PW4,
spoke of keeping good relations with the family of the
Crl.Appeal No.917 of 2020
accused and admitted the drunkenness of the husband who
was admitted to a Mental Health Facility; after which
there was no such incident. PW7 was sitting in the sit-
out of her house at around 8.30 p.m, when PW8 alighted in
front of their house from a vehicle and enquired as to
why there were no lights in his house. She responded that
two or three days back, the accused informed her of plans
to go to Chowara. PW8 went to his house, put on the
lights; after which PW7 heard him scream, asking her to
come running. PW7, along with PW6 and her husband went to
PW8's house. PW7, deposed in tandem with PW6, as to what
she witnessed in the house. PW7 also said that on
30.4.2016, at 6 a.m, the accused had come to her house.
PW7 questioned the accused as to why they returned after
the marriage on 25th, she replied that her husband
quarrelled with her brother.
11. PW8 is the husband of the accused. He admitted
his treatment at a Mental Health Facility and claimed to
have given up his drinking habits; one and a half years
back. He admitted to have picked up a quarrel, in his
Crl.Appeal No.917 of 2020
wife's house on the day of the marriage of his
brother-in-law and having returned with his wife and son
without taking food. He was enraged with his wife for not
being supportive and stopped interacting with his wife
after the said incident. He deposed that from Wednesday
to Saturday he did not talk to his wife and that they
were sleeping in separate rooms. On 30.04.2016, he went
for work at around 8 a.m and came back by 8 p.m. The
front gate was closed and there were no lights in the
house. He enquired at the opposite house, to PW7,
whether she saw his wife. When she replied that they
might have gone to Chowara, he went to his house and
found the front door locked. According to him, he took
the key, placed in the usual place, to open the door.
When he put on the lights, he saw the accused lying in
the hall, bleeding. He tried to lift her and not being
successful, called PW7, who came along with PW6 and her
husband. Together they lifted the accused and placed her
in a car. Then PW6 enquired about the boy; in search of
whom PW8 went to the room where the child sleeps. Inside
Crl.Appeal No.917 of 2020
the room he saw the child lying on the cot with blood on
the floor. He took the child in his arms and realised
that the child is no more. Immediately, himself and the
husband of PW6 took the accused to the hospital, from
where she was referred to the L.F Hospital. The child was
brought by others and his body was kept in the mortuary.
PW8 saw the cut on the left hand of the accused but did
not notice anything on the child. He deposed that after
he came back from the de-addiction centre, his family
life was happy. He also deposed about the blade and
poison bottle recovered from his house.
12. PW9 to PW12 were witnesses arrayed by the
prosecution to prove that the accused was working as a
Pharmacist and that she had purchased five Nitrest
tablets from the Neethi Medical Stores in which she was
working. PW13, PW16 & PW18 proved the purchase of a
pesticide bottle named 'Tafgor', by PW8, from the shop of
PW13. PW17, Village Officer prepared the site plan and
PW19, proved the Ownership Certificate of the Pharmacy
building. PW21, Scientific Assistant examined the scene
Crl.Appeal No.917 of 2020
of occurrence, PW22, CPO collected viscera of the child,
handed over to the I.O and released the body to the
relatives. PW23 is the CPO, who guarded the place of
occurrence and PW24, the S.I who registered FIR. PW25 &
PW26 were the Investigating Officers.
13. PW14, is the Chief Medical officer of the MAGJ
Hospital, who first examined the accused and also
declared the child's death. Ext.P10 is the Wound
Certificate of the accused and Ext.P11 that of the child.
PW15, the Doctor who conducted post-mortem, marked
Ext.P12 Postmortem Certificate and Ext.P13 final opinion
as to cause of death. PW20 is the Chief Casualty Medical
Officer of L.F. Hospital, who marked Ext.P18 Discharge
Certificate of the accused. PW20 was later examined as
CW2, at which point Ext.C1 series, treatment records of
the accused, was marked. PW2, examined as CW2, was
summoned under S.311 Cr.P.C., prior to which CW1, the
Consultant Physician of L.F. Hospital was also summoned.
The defence examined DW1, the Psychiatrist of L.F.
Hospital.
Crl.Appeal No.917 of 2020
III. FINDINGS OF THE TRIAL COURT
14. The trial court found the motive proved since PW8
admitted to have kept aloof from his wife, which could
have caused mental trauma inducing a thought to commit
suicide; after taking the life of their only son. Based
on the post-mortem report it was held that the death by
homicide stood proved. The delay in registration of FIR,
argued by the defence, was found to have been
sufficiently explained by PW24 and even PW1 did not have
a dispute with regard to the time of registration of FIR.
The evidence of PWs.13, 18, 25 & 26, which remained
unchallenged, was held to be sufficient to find the
presence of pesticide in the house, which the accused
admitted to have consumed.
15. The trial court then considered the allegation
raised by the defence against PW8 through the suggestions
in cross-examination and the written statement under
S.313. It was held that the evidence of PW14, the Doctor
who first examined her, was never challenged and the
accused was treated by various Doctors, to whom there was
Crl.Appeal No.917 of 2020
no complaint raised of forceful administration of
pesticide. The accused or the mother and brother [PW1],
who accompanied the accused at the time of consultation
with DW1, did not raise that complaint to DW1. The
allegation raised of a quarrel on the afternoon of
30.04.2016; which PW8 allegedly initiated in a drunken
state as also the manhandling of the wife and son, was
not heard by any of the neighbours examined. PW7 affirmed
the return of PW8 in the night around 8.30 p.m. These
facts cumulatively falsify the defence case against PW8.
16. The trial court placed faith in PW8's admission
that he had stopped consumption of alcohol after his
return from the de-addiction centre and also his
quarrelsome habits. There were no complaints against PW8
produced and no steps were taken by the family of the
accused to conduct further investigation, if at all the
accused had told them about the specific incident which
happened in the afternoon of 30.04.2016. The conduct of
PW8 was unimpeachable and there was only one question put
to PW7 about PW8's conduct, after his return from the de-
Crl.Appeal No.917 of 2020
addiction centre, which was denied by PW7. PW8, it was
found, would not have taken the accused to the hospital
if he had committed the offence. From the versions of PW7
& PW4, it was categorically held by the trial court that
PW8 was not at all involved or responsible for the
offences committed by the accused and the evidence led
unerringly pins the guilt on the accused.
17. On the evidence against the accused, the trial
court found that the purchase of five Nitrest tablets by
the accused was proved through PW9 to PW12 and Ext.P7
bills. The different name of the purchaser in Ext.P7(c)
bill was held to be inconsequential. Reliance was placed
on the recovery under S.27, of an empty strip of tablet
from the waste basket in the kitchen. The argument raised
by the defence that the entire house was searched by the
I.O on the next day of the crime was negatived looking at
Ext.P5 scene mahazar and finding that it does not
indicate a search made of the kitchen and the work area.
The trial court read Ext. P5 to find an opening to the
northern courtyard of the house, through which the
Crl.Appeal No.917 of 2020
accused could have entered the house after locking the
front door. The blood stains on the turkey towel, it was
held, probabilise the case of smothering of the child,
which blood according to the trial court was from the
bleeding hand of the accused. The 'last seen together
alive theory' was emphasized by the trial court to arrive
at the guilt of the accused.
18.The trial court also relied on Ext.C1(k) statement
made by the accused to PW20 Doctor, where she had
completely exonerated her husband and spoken only about
her involvement in the crime. Ext.P18 Discharge Summary
also spoke of the innocence of the husband. The treatment
records coupled with the evidence of the Doctors were
relied on to find that the accused was only drowsy and
could very well have made the statement. The trial court
also looked at the test results of the vitals of the
patient and found that she was in a normal condition. The
defects in the treatment sheets regarding the additions
made in pen, clearly visible in the copy handed over to the
defence counsel, was brushed aside by the trial court
Crl.Appeal No.917 of 2020
as routine correction of mistakes. Ext.C1(k) statement
made to PW20 was found to be an extra-judicial
confession. Corroboration to the same was found from the
evidence of PW27, the Magistrate, who recorded the dying
declaration, Ext.P28. The attending Physician at the L.F
Hospital, CW1, deposed to her condition at the time of
recording of the statement and the Magistrate spoke of
the admissions made by her.
19. The Magistrate had not complied with the
requirements under S.164(2)&(4) when Ext.P28 was
recorded. It is neither a dying declaration under S.32 or
a confession under S.164. But still it is a voluntary
statement made by the accused in a fit and conscious
state of mind and it was read over to her. At that time
the accused was not in police custody; she having been
arrested only on 12.05.2016. Based on decisions it was
found that S.164 Cr.P.C. comes into play only when the
accused is brought to a Magistrate, during an
investigation for the purpose of recording confession.
Since S.164 does not apply, Ext.P28 recorded by the
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Magistrate can be treated as an admission under S.21 of
the Evidence Act, was the finding. The contention of the
defence that the medical evidence regarding the cause of
death does not tally with either Ext.P28 statement or
Ext.C1(k) extra-judicial confession was rejected. Though
there is no admission of smothering, there could be no
proof with mathematical precision or absolute certainty
of every act of the accused. On an evaluation of the
entire evidence against the accused, coupled with no
explanation having been offered by the accused regarding
smothering, it was held that 'reasonably, logically and
legally' (sic) it can be presumed that the accused is
responsible for the death of her son.
IV. THE PRELIMINARY ASPECTS:
20. The FIS by PW1, though reported his sister
having killed her son and the attempted suicide; it is
just hearsay. He arrived directly at the hospital and in
the FIS he does not speak of his sister having told him
anything. His specific statement is that he saw his
Crl.Appeal No.917 of 2020
sister and the Doctor informed him that she had consumed
poison and also slit the vein in her hand. At the first
instance itself he had spoken of the physical violence to
which his sister was subjected to from the time, her son
was one year old. It was his inference that probably his
sister would have committed suicide after taking the life
of her only child, for reason of the husband's
harassment being unbearable. It cannot at all be said
that the FIS stands against the accused, since PW1
conveyed only what he was told by the persons he found at
the hospital and inferred that she would have done it due
to her miserable marital life. Suffice it to notice that
PW1 had, at the first instance itself, spoken of the sad
life of his sister, the accused. We agree with the trial
court that the aspect of delay in registering the FIR,
raised by the accused is not sustainable.
21. PW4, PW6 & PW7 are the neighbours on whom
absolute reliance was placed by the trial court. PW4 went
to the hospital on hearing of the mishap and
categorically stated that when he saw the accused, she
Crl.Appeal No.917 of 2020
was unconscious. PW7 rushed to the house of PW8, on
hearing his screams, along with PW6 and her husband. She
saw the accused lying in the hall and made enquiries
about the child. PW8 opened a room and put on the lights,
where the child was seen lying dead on the cot. The trial
court found motive from the admitted quarrel between the
husband and wife and found the general conduct of PW8, as
spoken of by the witnesses to be in his favour. PW7
admitted quarrels between the husband and wife, due to
the drunkenness of the husband, but after his treatment,
he had reformed. PW6 feigned ignorance of the
relationship between the husband and wife but was aware
of PW8 having been taken to a de-addiction centre.
Pertinent is the fact that, when PW8 asserted to have
reformed himself, he admits to have quarrelled with his
brother-in-law, on the latter's wedding day, the 25 th, for
reason of the newly-weds having booked a room in a
resort. He admitted to have left the home of the in-law's
in a huff, along with his wife and child and stopped
interaction with his wife after that. PW7 affirmed the
Crl.Appeal No.917 of 2020
accused having told her about the quarrel, which prompted
them to return on the wedding day itself. We are unable
to accept the assertion of PW8, of having shed his
quarrelsome manner and the husband and wife, obviously
did not share a congenial or even a cordial relationship.
22. That PW8 kept aloof from his own family is
admitted by himself. He was incensed by the conduct of
his brother-in-law on the day of the latter's marriage
and he was also infuriated with his wife for having not
supported him. We are unable to find unequivocally, that
this proves the motive for the murder of the child and
the subsequent attempt to suicide. None can ferret out
the feelings of a distressed woman and it is difficult to
fathom the despair of a woman subjected to constant
domestic abuse. But based on such surmises, it would be
unfair to find motive of revenge, that too in a case
where a beleaguered woman is accused of killing her own
child. The said motive could equally be attributed to the
domineering husband/father who admittedly was infuriated
by the conduct of his wife and her immediate relatives.
Crl.Appeal No.917 of 2020
PW1 spoke of a long history of physical torture and
harassment, his sister was subjected to at the hands of
PW8. There is also a history of drunkenness and
psychiatric treatment of PW8, coupled with abuse
complained of by the accused. We are unable to agree with
the trial court that the motive stood established, but
there is no rule that without motive there can be no
conviction for a criminal offence.
23. As far as the death of the child is
concerned, it has been established that it was by
homicide. The Doctor who carried out post-mortem
examination opines that death was caused by smothering by
reason of the injuries seen on the face of the child and
the internal signs disclosed on post-mortem examination.
The Doctor is categorical in his informed opinion that
neither the consumption of poison nor the cutting of the
veins on the hand of the child would have led to the
death of the child. Immediately we have to notice that
the accused-mother; even if the extra-judicial confession
or the statement under S.164 are admissible, does not
Crl.Appeal No.917 of 2020
speak of a smothering. Definitely there can be no
inference drawn that the mother who fed sleeping pills
and cut the veins of her child would ensure death by
smothering. The trial court's statement that the blood on
the turkey towel would be that of the mother; is not
supported by the FSL report Ext. P30. We do not see the
turkey towel, even send to or received at the FSL.
Further, even the so called admissions speak only of
having dealt with the child and then consumed poison and
slit her own veins in the next room. We say this without
having looked into the extra-judicial confession or the
admissions made by the accused to the Magistrate, the
efficacy of which will have to be examined independently.
24. Before that, we have to look at the evidence
proffered by the prosecution from the time when the
mother and child were found bleeding and the mother,
rushed to a hospital first. PW14 is the Doctor, who first
saw the accused in MAGJ Hospital, who issued Ext.P10
wound certificate. In Ext.P10, after recording the
history, of having been brought to Casualty in a
Crl.Appeal No.917 of 2020
semi-conscious state with cut injury to wrist and
consumption of pesticides, it is written so: "Pt.
admitted to consumption of pesticide after persistent
questioning". Due to breathing difficulties, the patient
was referred to L.F Hospital. PW14 deposed that the
patient was semi conscious and responding to questions.
The child was brought to the same Hospital, where he was
declared dead which certificate is marked as Ext.P11.
Here, we cannot but notice that PW8 though admits to have
found the child in another room, does not take him to the
hospital in the same car in which the accused was taken.
PW8 discerned death, when he took the child, in his arms
and left the child unattended; which in itself is a very
suspicious circumstance. The child was taken in PW5's
auto-rickshaw at the request of a neighbour.
V. THE EXTRA-JUDICIAL CONFESSION:
25. Now we come to the extra judicial confession as
relied on by the Court; but pertinently the prosecution
never had such a case. PW20 is said to be the Chief
Casualty Medical Officer of L.F Hospital. When he was
Crl.Appeal No.917 of 2020
first examined, on the side of the prosecution, his
evidence was that at 9.10 p.m on 30.04.2016, the accused
was brought to L.F Hospital, with the allegation of a
suicide attempt; consumption of pesticide and slashing of
right wrist with a razor blade, at 12 noon, due to
depression. She is also alleged to have said that her
husband was not involved. He produced Ext.P18 Certificate
issued by him at the time of discharge, on 12.05.2016.
The Discharge Certificate reads so:
Referred from MAGJ_Mookannur,H/o
consuming Pesticide at 12 noon.30.04.16 and
slashing her Rt Wrist E a Razor Blade due to
depression and there is no involvement of her husband
12 Noon in this act
The portion in italics is in a different hand and clearly
an interpolation; for the person who wrote the earlier
recital had recorded the time '12 Noon' immediately after
the earlier recital, which necessitated the interpolation
to be completed at the end of the next line. PW20
admitted that Dr.Thomas Raju had treated the patient. He
deposed that the recital in Ext.P18 was told to him by
the patient herself. The evidence at the first stage was
Crl.Appeal No.917 of 2020
confined to the above and there was nothing about any
injury having been inflicted on the child or the child
administered with sleeping pills. There was also no
whisper about a statement having been recorded.
26. At the second stage when PW2 was examined as
CW2, he produced the case sheet, as summoned by the
Court. The extra judicial confession is found in page 11
of the case sheet which reads as under:
33 year old female Mrs.Teena Baiju was brought
to the E.R as referred case from MAGJ Hospital
Mookkannoor with an alleged history of suicide
attempt by consumption of PESTICIDE(DIMETHOATE
30% EC) and slashing her wrist at around 12.00
pm 30/04/2016 Mrs.Teena also has slashed the
wrist of her 8 year old son (L.Wrist) after
giving 5 tablets of Nitrest 10 mg which she got
from her work place Neethi Medical Store;
Karukutty. She has been working there for the
past 2 months. She is a Pharmacist that
graduated from Amrita Institute. The reason
stated by Mrs.Teena for attempting suicide is
that her husband is not speaking to her and
their child for the past 4 day. Moreover he does
not have food too. According to her the plan to
suicide was formulated by her son and her 2 days
Back and it is with her son's consent that she
slashed his left Wrist using a Razor Blade.
She claims that her husband has no influence
over her attempted suicide.
This statement recorded in Ext.C1 case sheet, was marked
Crl.Appeal No.917 of 2020
as Ext.C1(k).
27. We have examined the case sheet in the light of
the arguments raised by the learned counsel for the
appellant/accused. Page 7 is the admission/discharge
record wherein both the date and time of the admission
and discharge are shown. The trial court found that
entries will be made at the time of admission and
discharge; without the Doctor having so stated. It is in
page 7 that the name of PW20 is entered in ink; where
there is no requirement so to do. Further two signatures
are put by the very same Doctor in page 11; without any
requirement so to do. The Admission Discharge Record has
six columns from top to bottom; wherein - 'Provisional
Admission Diagnosis', 'Final Diagnosis' 'Operative
Procedures', 'Result', 'Cause of Death' and the 'Name and
Sign of the Nurse in Charge and the Consultant' are to be
respectively recorded. Looking at the Admission-Discharge
Record at page 7, we find no necessity for recording the
name of the Doctor or putting the signatures at the place
where it appears. Yet again there are two sets of
Crl.Appeal No.917 of 2020
handwritings seen in the said sheet one recording the
aspects in capitals and the other in running hand; the
latter being that of PW20, who made the obvious
interpolation of his name and quite probably interpolated
the recitals in the running hand afterwards, before the
photocopy produced before Court was taken. Those in
capitals was entered by someone, (for) Dr. Thomas Raj
Paul, the attending Consultant. The Admission-Discharge
Record has been signed, at the bottom, in the appropriate
column, (for) Dr.Thomas Raju Paul, who was the Consultant
Physician who treated the accused; admitted by PW20.
28. The Admission-Discharge Record, obviously is
one issued at the time of Discharge since it also records
the date of discharge and result of treatment; the
required details being copied from the case sheet.
Moreover at page 9 is seen the 'Emergency: Initial
Assessment Sheet' which is prepared on admission. Though
PW20 says that he was the Chief Casualty Medical Officer,
there is no endorsement made by PW20, in page 9 which
records the alleged cause of injury as attempted suicide
Crl.Appeal No.917 of 2020
and the date and time as 30.4.2016, 9.10 p.m. The
complaint and history, as also the findings have been
recorded and so were the vitals taken and results
recorded in page 9. The Doctor in attendance, Dr. Denim
Edger, MBBS, Medical Officer, signed on the first page
of page 9 and also overleaf, with his seal; both at the
bottom of the page. Coming to page 10, it is the
'Prescription and Administration Record', which on the
overleaf indicates that one Dr.Shiva saw the patient and
advised admission and the patient was handed over to
MICU. It is after this that the statement in page 11 has
been recorded, which going by PW20's testimony was
recorded in the Casualty, before the handing over to
MICU. In page 11, the date now seen is 30.4.2016, with
'0' interpolated in ink; even in the photocopy available
with the defence Counsel. There is nothing to indicate
PW20 having seen the patient, on admission.
29. Here, we have to notice that even according to
the learned Sessions Judge, when PW2 was summoned, he
came with the original case sheet and a photocopy. The
Crl.Appeal No.917 of 2020
photocopy, going by the impugned judgment itself, was
'mistakenly handed over to the counsel for the defence,
rather than the Prosecutor'(sic). The learned counsel for
the appellant, who appeared in the trial court too,
asserts that when the Doctor produced the case sheet, he
insisted for a copy and the Court handed over the photo
copy, produced by the Doctor, to the defence counsel.
While cross examining, the defence counsel pointed out
that in page 7, the name of PW20 was entered in ink, in
the copy. So was a '0' interpolated in ink after the
figure '3' in the date shown in page 11 as '3.04.2016'.
The copies before us, however does not indicate this
because even according to the trial court, there were
further copies taken for supplying to the Prosecutor from
the original produced. On being shown the copy by the
learned Counsel for the appellant, we requested him to
hand over the same and in the presence of both Counsels
handed it over to the Registry for safe keeping in a
sealed cover, signed by both of us. The said sealed cover
was opened when we examined the Doctor and we again
Crl.Appeal No.917 of 2020
sealed it, which is marked as court exhibit Ext. X2.
30. We summoned PW20 before us and examined him. He
admitted to have put the name in ink in the original and
the photocopy prior to production before the trial court.
As to the interpolation of '0' in the date shown on page
11, he feigned ignorance and opined that it would have
been put by the Record Section. He explained the name
having been interpolated as a mere filling up of the
vacant column. As we noticed, there is no column for
writing the name of the Doctor, where it is written.
Hence, it is very clear that the name of the Doctor in
page 7 was not available in the case sheet, which
indicated only the name of Dr. Thomas Raju Paul. PW20
stated before the trial court also that prior to
submission to court, he had written his name both on the
original case sheet and on the photocopy brought by him
to court; a clear admission of the interpolation. He
claims ignorance about the interpolation of zero in page
11, but admits that it would have been done before
production before court. The interpolation made in page
Crl.Appeal No.917 of 2020
7, of the name of PW20, indicates a deliberate attempt to
establish before court that, in fact PW20 had seen the
patient and also recorded the statement at page 11. More
curious is the fact that the initial assessment sheet
does not indicate PW20's presence at page 9 or at page
10. The patient was examined by Dr. Denim Edger and then
Dr. Shiva and on the latter's advise she was handed over
to MICU. Quite possibly the recitals in the running hand
and the two signatures in the original were also put by
PW20, just before the photo copy produced by him, was
taken.
31. We agree with the learned counsel for the
appellant that after the patient was handed over to MICU,
there could not have been a statement recorded as seen
from page 11, in the presence of PW20, who is the Chief
Casualty Medical Officer. More suspicious is the factum
of the interpolations made of the name and the date. The
statement recorded is also so lucid and complete making
it artificial and impossible of being spoken of by a
person, who on examination was found to be "drowsy,
Crl.Appeal No.917 of 2020
obeying commands, pupils constricted". Only a conscious
and oriented person would be able to give such a
statement, which obviously the patient was not, at the
time of admission. The trial court ought not to have
entered a finding based merely on the test results of the
vitals, that the patient would have been fit to make such
a statement; which expertise Judges, irrespective of
hierarchy, lack.
32. PW14, the Doctor who examined the accused
first at MAGJ hospital deposed that she was semi-
conscious and PW4 who saw her there, also deposed that
she was unconscious. The initial impression of Dr. Denim
Edger in page 9 of Ext.C1 is also that the patient was
drowsy, belying as very unlikely the lucid statements of
the patient about the history of occurrence and her own
antecedents as found in Ext. C1(k). Further suspicion
wells up in our minds for reason of the Doctor having not
stated any of this, when he was examined as PW20. There
is nothing about the child, in the 'Discharge Certificate
for Medico-legal Cases' at Ext.P18. At the first
Crl.Appeal No.917 of 2020
instance, we reiterate, PW20's only statement was that the
patient had consumed poison and had slashed her wrist.
There was no reference to the child or the alleged acts to
which he was subjected. One other relevant aspect is that
PW20 admits that the statement (extra-judicial confession)
in page 11 was taken down by a junior doctor, who was not
examined. There is nothing produced by the prosecution to
prove that PW20 was present at the time the admission was
made. Definitely the Casualty Medical Officer is not on
duty 24/7. His presence is not seen from the case sheet
and there is a will-full attempt to interpolate his name
in the case sheet and the copy, before production before
Court. The recitals are in different handwritings and the
signatures too appear in places where they are not
required and could have been put later on; but before the
photo copy was taken. Even in Ext.P18 the recitals of the
innocence of the husband is an interpolation. The witness
is unreliable and cannot be believed.
33. The totality of the above circumstances commend
us to reject the statement Ext.C1(k) in the case sheet as
Crl.Appeal No.917 of 2020
concocted and unbelievable. Sahadevan v. State of T.N.,
[(2012) 6 SCC 403], at page 410 held so :
14. It is a settled principle of criminal
jurisprudence that extra-judicial confession is a
weak piece of evidence. Wherever the court, upon due
appreciation of the entire prosecution evidence,
intends to base a conviction on an extra-judicial
confession, it must ensure that the same inspires
confidence and is corroborated by other prosecution
evidence. If, however, the extra-judicial confession
suffers from material discrepancies or inherent
improbabilities and does not appear to be cogent as
per the prosecution version, it may be difficult for
the court to base a conviction on such a confession.
In such circumstances, the court would be fully
justified in ruling such evidence out of
consideration.
We cannot but find that there is an inherent
improbability in the accused, who was drowsy from the
poison imbibed and loss of blood from the slit on her
wrist, making such a statement. There are also material
discrepancies in the narration about the recording of the
statement, the doubts about the presence of PW20
accentuated by tampering of the case sheet, the
non-examination of the scribe, the absence of such
confessions in Ext. P18, the interpolation regarding the
Crl.Appeal No.917 of 2020
innocence of the husband in Ext. P18 issued by PW20
himself and the failure of PW20 to speak of it at the
first instance when he was examined in Court. Above all,
the prosecution never projected the case of an extra-
judicial confession.
VI. Section 311:
34. It is in this context we examine whether
there was over zealousness on the part of the court, in
summoning the witness for re-examination under S.311
Cr.P.C, when there was no such prayer by the
prosecution. We looked at the proceedings sheet, which
indicates the trial having commenced on 14.08.2019 with
the examination of PW1. Evidence was closed on 31.10.2019
and the accused was questioned under Section 313 Cr.P.C
on 29.11.2019. An application filed under Section 232
Cr.P.C was heard and rejected on 07.12.2019. On
26.12.2019, the defence submitted that there is no
evidence from their part. After various postings, on
20.02.2020, the matter was heard in part and on
24.02.2020, the court suo motu found that the Doctor who
Crl.Appeal No.917 of 2020
gave the certification in Ext.P28, is a material witness
and issued summons. The said Doctor was examined as CW1
on 12.03.2020. Without anything further, the Court again
suo motu, issued summons to PW20 for production of case
sheet and for evidence, for the just decision of the
case, without assigning any reason or recording a
satisfaction as to how the production of the case sheet
or the re-examination of the witness would enable a just
decision in the case.
35. Here, we have to examine the power under S. 311
Cr.P.C, which the Hon'ble Supreme Court held is so wide
that it obliges the Courts to be very responsible while
invoking the same. Natasha Singh v. CBI, [(2013) 5 SCC
741] was concerned with an application made by one of the
accused under S.311. The Court directed a brief summary
of the nature of the evidence, be provided, based on
which the application was rejected. It was held that the
Court at the stage of consideration of an application
under S.311 cannot weigh the evidence and analyse it and
what is required is only a satisfaction that the evidence
Crl.Appeal No.917 of 2020
would facilitate a just decision in the case. The request
for summoning a handwriting expert was rejected on the
ground that it would not be conclusive; which was held to
be not proper. The principles were laid down as below:
15. The scope and object of the provision is
to enable the court to determine the truth and
to render a just decision after discovering all
relevant facts and obtaining proper proof of
such facts, to arrive at a just decision of the
case. Power must be exercised judiciously and
not capriciously or arbitrarily, as any
improper or capricious exercise of such power
may lead to undesirable results. An application
under Section 311 CrPC must not be allowed only
to fill up a lacuna in the case of the
prosecution, or of the defence, or to the
disadvantage of the accused, or to cause
serious prejudice to the defence of the
accused, or to give an unfair advantage to the
opposite party. Further, the additional
evidence must not be received as a disguise for
retrial, or to change the nature of the case
against either of the parties. Such a power
must be exercised, provided that the evidence
that is likely to be tendered by a witness, is
germane to the issue involved. An opportunity
of rebuttal however, must be given to the other
party. The power conferred under Section 311
CrPC must therefore, be invoked by the court
only in order to meet the ends of justice, for
strong and valid reasons, and the same must be
exercised with great caution and
circumspection. The very use of words such as
"any court", "at any stage", or "or any
enquiry, trial or other proceedings", "any
person" and "any such person" clearly spells
Crl.Appeal No.917 of 2020
out that the provisions of this section have
been expressed in the widest possible terms,
and do not limit the discretion of the court in
any way. There is thus no escape if the fresh
evidence to be obtained is essential to the
just decision of the case. The determinative
factor should therefore be, whether the
summoning/recalling of the said witness is in
fact, essential to the just decision of the
case.
36. Mannan Shaikh v. State of W.B [(2014) 13 SCC
59] was a case in which the prosecution failed to bring
on record a statement purportedly taken from the deceased
despite the I.O having deposed before Court that such a
statement was taken. An application to recall the I.O was
rejected by the trial court holding that it would merely
allow the prosecution to fill up a lacuna; which the High
Court reversed on the premise that no advantage can flow
to the accused from an obvious mistake of the
prosecution. While upholding the order of the High Court
as one eminently justified in the pursuit of truth, which
every Court is engaged in; the following caution was
expressed:
Crl.Appeal No.917 of 2020
12. The aim of every court is to
discover truth. Section 311 of the Code is
one of many such provisions of the Code
which strengthen the arms of a court in its
effort to ferret out the truth by procedure
sanctioned by law. It is couched in very
wide terms. It empowers the court at any
stage of any inquiry, trial or other
proceedings under the Code to summon any
person as a witness or examine any person in
attendance, though not summoned as witness
or recall and re-examine already examined
witness. The second part of the section uses
the word "shall". It says that the court
shall summon and examine or recall or re-
examine any such person if his evidence
appears to it to be essential to the just
decision of the case. The words "essential
to the just decision of the case" are the
keywords. The court must form an opinion
that for the just decision of the case
recall or re-examination of the witness is
necessary. Since the power is wide its
exercise has to be done with circumspection.
It is trite that wider the power greater is
the responsibility on the courts which
exercise it. The exercise of this power
cannot be untrammelled and arbitrary but
must be guided only by the object of
arriving at a just decision of the case. It
should not cause prejudice to the accused.
It should not permit the prosecution to fill
up the lacuna. Whether recall of a witness
is for filling up of a lacuna or it is for
just decision of a case depends on the facts
and circumstances of each case. In all cases
it is likely to be argued that the
prosecution is trying to fill up a lacuna
because the line of demarcation is thin. It
is for the court to consider all the
Crl.Appeal No.917 of 2020
circumstances and decide whether the prayer
for recall is genuine.
37. With the above principles in mind we look at
the manner in which the power under S.311 was invoked by
the Sessions Court. As we noticed from the proceedings
sheet, after conclusion of evidence and the hearing
having proceeded with on 20.02.2020 and 24.02.2020, it
was posted for further hearing to 28.02.2020. On
28.02.2020, the Doctor, who certified Ext.P28 was suo
motu summoned for examination for the just decision of
the case. The Doctor was then examined as CW1 on
12.03.2020, who spoke about the condition of the accused
at the time when the statement was recorded by the
Magistrate. Again without any application by the
prosecution or even an oral request by them and without
any perceivable reason being recorded, PW20 was summoned
to produce the case sheet. We cannot but observe that it
would have been appropriate that the mind of the Court
was made clear to both the Prosecutor and the Counsel
appearing for the defence, their views heard and then the
satisfaction recorded with sufficient reasons.
Crl.Appeal No.917 of 2020
38. The witness was summoned to produce the case
sheet and give evidence 'for the just decision of the
case' (sic). The principles propounded by the Hon'ble
Supreme Court, we are sure, does not merely mandate a
hollow reiteration of the words employed in the
provision: 'for a just decision of the case'. There
should be strong and valid reasons recorded, however
brief, as to the exercise of that power, facilitating a
just decision. In fact when CW1 was summoned, it was
briefly noticed that he was the Doctor who gave the
certification in Ext.P28 of competence of the patient to
make a statement to the Magistrate; quite justified. That
is a strong and valid reason and the suo motu power
exercised under S.311 was proper in so far as the summons
issued to CW1. The satisfaction of the recall of PW20,
for enabling a just decision is totally absent. It has
been famously said that greater the power; higher is the
degree of responsibility. On the above reasoning we find
the invocation of the power to be bad, the testimony of
the Doctor as CW1 to be a gross embellishment of what he
Crl.Appeal No.917 of 2020
stated as PW20 and also eschew the statement said to have
been made by the patient; as not worthy of any credence.
VII. Statement to the Magistrate:
39. Now we come to Ext.P28 and the issue as to
whether it is a dying declaration or a confession or an
admission or a mere statement under S.164. It cannot
certainly be all of these, since there are definite
contours within which each of these terms are defined;
statutorily and judicially. As far as dying declarations
are concerned the distinction in evaluation under the
English Law and the Indian Law as also the underlying
principles are succinctly stated by the Hon'ble Supreme
Court in Kishan Lal (supra). Paragraph 18 is extracted
here under:
"18. Now we proceed to examine the principle
of evaluation of any dying declaration. There
is a distinction between the evaluation of a
dying declaration under the English law and
that under the Indian law. Under the English
law, credence and the relevancy of a dying
declaration is only when a person making such a
statement is in a hopeless condition and
expecting an imminent death. So under the
English law, for its admissibility, the
declarant should have been in actual danger of
Crl.Appeal No.917 of 2020
death at the time when they are made, and that
he should have had a full apprehension of this
danger and the death should have ensued. Under
the Indian law the dying declaration is
relevant whether the person who makes it was or
was not under expectation of death at the time
of declaration. Dying declaration is admissible
not only in the case of homicide but also in
civil suits. Under the English law, the
admissibility rests on the principle that a
sense of impending death produces in a man's
mind the same feeling as that of a
conscientious and virtuous man under oath. The
general principle on which this species of
evidence are admitted is that they are
declarations made in extremity, when the party
is at the point of death, and when every hope
of this world is gone, when every motive to
falsehood is silenced and the mind is induced
by the most powerful considerations to speak
only the truth. If evidence in a case reveals
that the declarant has reached this state while
making a declaration then within the sphere of
the Indian law, while testing the credibility
of such dying declaration weightage can be
given. Of course depending on other relevant
facts and circumstances of the case".
40. In the cited case the dying declaration was
disbelieved for reason of it having been given two months
after the alleged incident, at which time the deceased
was not expecting imminent death, the real cause of death
being in conflict with that stated and the disparity
between two dying declarations. In the present case also
Crl.Appeal No.917 of 2020
we notice that the declarant was not, at the time of
giving the statement, having any fear of imminent death.
CW1, the Doctor who certified that she was fit to give
the statement and well oriented also stated in his
deposition that 'she was not in a critical stage'. In
Ext.P28, the 11th question asked by the Magistrate to the
declarant was whether the declarant feels that her
condition is critical. The declarant clearly responded
that she does not feel that her present condition is
critical. She also volunteered that yesterday she was not
able to move her hands and legs and today there is only
pain. Hence clearly the declarant was not under fear of
death; which as per the cited decision is not imperative,
but all the same has a marginal relevance when compared
with the other circumstances.
41. S.32(1) of the Evidence Act makes, inter alia,
a written statement of a person who is dead or cannot be
found, to be relevant, when it relates to cause of death;
in cases where the statement is made by a person as to
the cause of his/her death or the circumstances of the
Crl.Appeal No.917 of 2020
transaction resulting in his/her death, when the cause of
his/her death comes into question. In the present
case the declarant is alive and was also not under any
fear of imminent death at the time the statement was
given. The statements made regarding the cause of
injuries inflicted on the child, oneself and the
poisonous substance imbibed voluntarily are confessions
of a crime which do not fall under the definition of a
dying declaration under S.32 of the Evidence Act and is
inadmissible under Article 20(3); unless it is recorded
following the procedure mandated under sub-sections (2)
to (4) of Section 164.
42. Gentela Vijayavardhan Rao v. State of A.P.
(1996) 6 SCC 241 was a case in which two victims, whose
dying declarations were recorded survived and it was held
so:
"17. Though the statement given to a magistrate
by someone under expectation of death ceases to
have evidentiary value under Section 32 of the
Evidence Act if the maker thereof did not die,
such a statement has, nevertheless, some utility
in trials. It can be used to corroborate this
testimony in court under Section 157 of the
Evidence Act which permits such use, being a
Crl.Appeal No.917 of 2020
statement made by the witness "before any
authority legally competent to investigate". The
word 'investigate' has been used in the section
in a broader sense. Similarly the words "legally
competent" denote a person vested with the
authority by law to collect facts. A magistrate
is legally competent to record dying declaration
"in the course of an investigation" as provided
in Chapter XII of the Code of Criminal Procedure,
1973. The contours provided in Section 164(1)
would cover such a statement also. Vide Maqsoodan
v. State of U.P. (1983) 1 SCC 218. However, such
a statement, so long as its maker remains alive,
cannot be used as substantive evidence. Its user
is limited to corroboration or contradiction of
the testimony of its maker".
43. In the circumstance of the declarant surviving,
the dying declaration recorded by a Magistrate cannot
have evidentiary value under S. 32 nor can it be termed
res gestae under S. 6 of the Evidence Act, if there is an
interval; however slight it be, held the Hon'ble Supreme
Court. Sunil Kumar v State of M.P [(1997) 10 SCC 570]
also held that a statement recorded as a dying
declaration can be used as one under Section 164, for
the purpose of contradicting and corroborating the
declarant if he survives. State of U.P. v. Veer Singh,
[(2004) 10 SCC 117 ] followed the cited decisions to
hold so:
Crl.Appeal No.917 of 2020
"5. It is trite law that when the maker of a
purported dying declaration survives, the same is not
statement under Section 32 of the Indian Evidence
Act, 1872 (for short "the Evidence Act") but is a
statement in terms of Section 164 of the Code. It can
be used under Section 157 of the Evidence Act for the
purpose of corroboration and under Section 155 for
the purpose of contradiction. ... ".
Needless to say, for corroboration or for contradiction
the declarant or the author of the statement has to be
examined as a witness Baij Nath Sah v. State of Bihar
[(2010)6 SCC 736]. Ext. P28 is not a dying declaration,
as found by the trial court.
44. Now we come to the question whether the
statement under S.164 with respect to the injuries caused
on the child can be relied on, as a confession, to find
the guilt of the accused who is the declarant. The
accused has retracted from the confession in the S.313
questioning. Even a retracted confession is admissible,
but the rule of prudence is that it cannot solely be
relied on to convict without substantial and independent
corroboration. S.164 enables recording of confessions and
statements by a Magistrate whether or not he has
Crl.Appeal No.917 of 2020
jurisdiction in the case, in the course of an
investigation or at any time afterwards before the
commencement of the enquiry or trial. Sub Section (2) to
(4) of S.164 clearly mandates the procedure for recording
a confession which is mandatory, for the Courts to accept
it in the trial of the declarant or any of his
co-accused.
45. Shivappa (supra) while holding that a
confession is an efficacious proof of guilt, emphasised
the need to examine whether it was voluntary, true and
trust worthy. It was held so on the various mandates in
recording of confession as extracted here under:
"6. From the plain language of Section 164 CrPC
and the rules and guidelines framed by the High
Court regarding the recording of confessional
statements of an accused under Section 164 CrPC,
it is manifest that the said provisions emphasise
an inquiry by the Magistrate to ascertain the
voluntary nature of the confession. This inquiry
appears to be the most significant and an
important part of the duty of the Magistrate
recording the confessional statement of an
accused under Section 164 CrPC. The failure of
the Magistrate to put such questions from which
he could ascertain the voluntary nature of the
confession detracts so materially from the
evidentiary value of the confession of an accused
that it would not be safe to act upon the same.
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Full and adequate compliance not merely in form
but in essence with the provisions of Section 164
CrPC and the rules framed by the High Court is
imperative and its non-compliance goes to the
root of the Magistrate's jurisdiction to record
the confession and renders the confession
unworthy of credence. Before proceeding to record
the confessional statement, a searching enquiry
must be made from the accused as to the custody
from which he was produced and the treatment he
had been receiving in such custody in order to
ensure that there is no scope for doubt of any
sort of extraneous influence proceeding from a
source interested in the prosecution still
lurking in the mind of an accused. In case the
Magistrate discovers on such enquiry that there
is ground for such supposition he should give the
accused sufficient time for reflection before he
is asked to make his statement and should assure
himself that during the time of reflection, he is
completely out of police influence. An accused
should particularly be asked the reason why he
wants to make a statement which would surely go
against his self-interest in course of the trial,
even if he contrives subsequently to retract the
confession. Besides administering the caution,
warning specifically provided for in the first
part of sub-section (2) of Section 164 namely,
that the accused is not bound to make a statement
and that if he makes one it may be used against
him as evidence in relation to his complicity in
the offence at the trial, that is to follow, he
should also, in plain language, be assured of
protection from any sort of apprehended torture
or pressure from such extraneous agents as the
police or the like in case he declines to make a
statement and be given the assurance that even if
he declined to make the confession, he shall not
be remanded to police custody".
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46. The procedure to be followed by a Magistrate
in recording confessions is clearly spelt out in The
Criminal Rules of Practise, 1982; made by the High Court
of Kerala. Chapter X is dedicated to 'Recording of
Confessions'; Rules 70 & 71. Inter alia it requires the
Magistrate, to record reasons for believing that the
statement is voluntary after having explained to the
accused that there is no obligation on him to answer any
questions and warning the accused that it may be used
against him. If necessary, under Rule 3(c), the
Magistrate has to ask whether the statement to be made is
induced by ill-treatment and if so by whom. This
especially assumes relevance in the setting from which
the accused comes; ie: from a circumstance of a battered
domestic life. True the patient from whom the statement
was recorded was not in police custody but an
investigation was commenced on an FIR, in which the
patient was arrayed as the accused. The Magistrate was
brought to the Hospital, also at the instance of the
Police. Rule 70 (4) also mandates that the accused be
Crl.Appeal No.917 of 2020
given a few hours for reflection, which was possible
since the accused was not in any critical state; affirmed
by the Doctor.
47. Parmanand Pegu (supra) was another case in
which the statement under S.164 was disbelieved by Court.
Sub Sections (2) to (4) of S.164 and the procedural
requirements there under were held to be salutary
safeguards to ensure that a confession is made
voluntarily by the accused after being appraised of the
implications of making such a confession. The need to
appraise the declarant of such a statement being used
against him/her and the necessity to afford time for
reflection, were specifically stressed upon. Even when
the statutory procedural requirements are complied with,
it was held that the Court called upon to consider such
evidence should still examine whether there are any
circumstances appearing from the record which may cast a
doubt on the voluntary nature of the confession and that
the accused was free from threat duress or inducement.
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48. As has already been held by us, the
declaration made by the accused cannot be brought under
the definition of a dying declaration. The statement
obviously was attempted to be recorded by the police
through a Magistrate as an abundant caution since the
child died and the mother perceivably had attempted
suicide. We once again look at Shivappa (supra) and
extract hereunder Paragraph 7:
"7. The Magistrate who is entrusted with the
duty of recording confession of an accused
coming from police custody or jail custody
must appreciate his function in that behalf as
one of a judicial officer and he must apply
his judicial mind to ascertain and satisfy his
conscience that the statement the accused
makes is not on account of any extraneous
influence on him. That indeed is the essence
of a 'voluntary' statement within the meaning
of the provisions of Section 164 CrPC and the
rules framed by the High Court for the
guidance of the subordinate courts. Moreover,
the Magistrate must not only be satisfied as
to the voluntary character of the statement,
he should also make and leave such material on
the record in proof of the compliance with the
imperative requirements of the statutory
provisions, as would satisfy the court that
sits in judgment in the case, that the
confessional statement was made by the accused
voluntarily and the statutory provisions were
strictly complied with".
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49. The Magistrate is not merely acting as a
scribe. It is the status as a Judicial Officer, well
versed in law, which motivated the Legislators to treat
the statement recorded under S.164 at a higher plane than
those recorded by the police under S.161, which would
also inspire the Court analysing the evidence. The
moment, a dying declaration transforms itself into a
confession, with the possibility of the declarant being
accused of the offence itself, it is incumbent upon the
Magistrate to pause and comply with the salutary
statutory procedure prescribed under sub-sections (2) to
(4) of S.164. If we look at the statement recorded and
the clear expression of opinion of the Doctor that she is
not in a critical stage; when statements were made
inculpating herself of a homicide, the Judicial Officer
ought to have cautioned her of the implications of the
further statements. The Judicial Officer definitely was
aware of the implications, also when the patient's
condition was not critical, as opined by herself. The
Magistrate ought to have cautioned her and given her time
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for reflection and complied with sub-sections (2) to (4)
of S.164 in its letter and spirit.
50. Sarwan Singh v. State of Punjab [AIR 1957 SC
637] held that while recording a confession, after the
initial cautioning, Magistrate should at least grant 24
hrs. to the accused to consider whether the confession
should be made. Shankariya v. State of Rajastan [(1978) 3
SCC 435] found that there is no statutory provision that
the accused should be given 24 hrs. for reflection and
that the time would depend upon the circumstances of each
case. In that case though only 15 to 20 minutes were
granted for reflection, the accused was in judicial
custody for more than 30 hrs, free from fear or influence
by the Police. However, it was stressed that the
Magistrate should be satisfied that confession is
voluntary. The said view was reiterated in Bhagwan Singh
v. State of Madhya Pradesh [(2003) 3 SCC 21].In State of
Rajastan v. Ajit Singh [(2008)1 SCC 601] the time granted
of 15 to 30 minutes for reflection was found to be
insufficient. State [NCT of Delhi] v. Navjot Sandhu @
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Afsan Guru [(2005) 11 SCC 600] also found 5 to 10 minutes
insufficient. No such compliance, even as a formality,
has been carried out in the present case, which makes the
declaration inadmissible in evidence as a confession.
51. Lord Atkin's definition of the expression
'confession' in Pakala Narayana Swami v. Emperor (AIR
1939 PC 47) was as follows:
"confession must either admit in terms the
offence, or at any rate substantially all the
facts which constitute the offence. An
admission of a gravely incriminating fact, even
a conclusively incriminating fact is not of
itself a confession...."
If the admission is sufficient to prove the guilt of the
maker, then it is a confession, the recording of which
has to strictly follow the formalities as prescribed
under S.164 (2) to (4). Ext.P28 conclusively incriminates
the accused and the statutory mandate had to be followed;
failing which it is not admissible as a confession of the
accused, worthy to find the guilt of the accused.
Kashmira Singh v. State of Madhya Pradesh [AIR 1952 SC
159] held that a confession is admissible without
examining the Magistrate, who recorded it, but if it is
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not in conformity with law, even the examination of the
Magistrate will not cure the illegality. The trial court
also has not relied on Ext.P28 as a confession.
52. The trial court has relied on S.21 of the
Evidence Act to find relevant, the statement under S.164
made to the Magistrate. Admissions and confessions are
dealt with under S.17 to S.31 under a separate nominal
heading of 'Admissions' under Chapter II of the Evidence
Act. It is trite that 'Admissions' is the genus and
'Confessions', the specie. In the book, 'An Introduction
To The Indian Evidence Act, The Principles Of Judicial
Evidence' by James Fitzjames Stephen, in its IInd
Impression at page 170 & 171 it is so stated:
"i. The general rule with regard to
admissions, which are defined to mean all that
the parties or their representatives in certain
degrees say about the matter in dispute, or
facts relevant thereto, is that they may be
proved as against those who made them, but not
in their favour. ...
ii. Admissions in reference to crimes are
usually called confessions. I may observe upon
the provisions relating to them that
sections.25,26 & 27 were transferred to Evidence
verbatim from the Code of Criminal Procedure,
Act XXV of 1861. They differ widely from the law
of England and were inserted in the Act of 1861
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in order to prevent the practice of torture by
the Police for the purpose of extracting
confessions from persons in their custody."
This does not, as already held, digress from the fact
that any confession recorded by a Magistrate from a
person who is not accused in a crime, can be without
following the procedure prescribed under sub-sections (2)
to (4) of Section 164.
53. Gulam Hussain v. State [1949 SCC Online VC
67] was quoted by the trial court but misread in our
humble opinion. That was a case in which one among the
accused; all of whom were charged with rape, wished to
make a confession and was taken before a Magistrate.
After the required formalities, the statement made was
exculpatory and did not amount to a confession. The
statement made constituted an admission that on the day
of the crime he came to the house of the prosecutrix and
acted as a watchman at the gate. While accepting the
view, that a statement made by a witness under S.164
could not be used against the accused, as substantive
evidence; a statement under S.164, which does not amount
Crl.Appeal No.917 of 2020
to a confession, it was held, can be used against the
maker, as an admission within the purview of S's.18 to 21
of the Evidence Act. Under S.164 a Judicial Magistrate
may record a confession, but there is a clear distinction
between Admission and Confession as has been held in
Navjot Sandhu @ Afsan Guru (supra). It was held by their
Lordships that 'every confession must necessarily be an
admission, but every admission cannot necessarily amount
to a confession' (sic).
54. Harjagdev Singh (supra), also relied on by
the trial court, was another case in which the
principles were reconsidered and the recording of
confession declared to be a solemn act in discharge of
the duties of a Magistrate. The quotation from the cited
decision: 'Extra-judicial confessions are generally those
that are made by a party to or before a private
individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is
not especially empowered to record confessions under
Section 164 of the Code or a Magistrate so empowered but
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receiving the confession at a stage when Section 164 of
the Code does not apply.' (sic) was wrongly applied by
the trial court. It is applicable in circumstances where
the Magistrate acts in a private capacity as a relative,
an invitee to a function or so on. Here the Magistrate
was brought by the I.O itself and it cannot be said that
he was acting in a private/personal capacity. The
Magistrate was summoned to take the dying declaration on
the requisition of the S.I of Police, Angamally in Crime
No. 901/2016 under Section 302 & 309 IPC, as seen from
the first recital in Ext. P28. Ext. P20 is the FIR which
shows the accused as the appellant herein. In the case of
a confession made to a police officer, interpreting
Section 25 and the words employed, it was held in Aghnoo
Nagesia v. State of Bihar, (1966) 1 SCR 134 that 'The
expression '"accused of any offence" covers a person
accused of an offence at the trial whether or not he was
accused of the offence when he made the confession'
(sic). The words employed in Section 164, with reference
to a confession is 'any person' and there is not even a
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requirement that the person should be an accused.
55. The trial court brushed aside the reliance
placed on Parmanand Pegu (supra) and Kishanlal (supra);
according to us erroneously and without carefully
scanning the decisions. It was found that there, the
confession was of strangulation while the death was of
head injury; which facts were of Parmanand Pegu (supra).
In Kishanlal (supra) the confession was of burning, while
the death was due to heart ailments. Likewise; even if
the admissions herein are accepted it does not reveal the
cause of death, which is strangulation. We are also of
the opinion that Ext. P28 cannot be accepted under S.21
of the Evidence Act since it is a clearly inculpatory
statement falling under the specie of confession; which
we already held has to be eschewed. Ammini(supra) and the
declaration made therein is specifically under S.10 of
the Evidence Act, which provides that where there is
reasonable ground to believe that there is a conspiracy
to commit an offence, anything said done or written by
any one of the conspirators, with reference to the common
Crl.Appeal No.917 of 2020
intention, after the intention was first entertained by
any one of them is a relevant fact as against each of the
conspirators and can be utilized for the purpose of
proving the existence of a conspiracy and the
participation of that person in the conspiracy. This has
no application to the present case.
56. Yet again, admissions have to be proved and
once Ext.P28 is neither a dying declaration or a
confession then it has the status of a S.164 statement,
which can be used for contradiction under S.145 or
corroboration under S. 157. Bandlamuddi Atchuta Ramaiah
v. State of A.P., [(1996) 11 SCC 133] noticed the
following decisions. Nisar Ali v. State of U.P.[1957 SCR
657], a three-Judge Bench decision observed that: "A
first information report is not a substantive piece of
evidence and can only be used to corroborate the
statement of the maker under Section 157, Evidence Act,
or to contradict it under Section 145 of that Act. It
cannot be used as evidence against the maker at the trial
if he himself becomes an accused, nor to corroborate or
Crl.Appeal No.917 of 2020
contradict other witnesses. In this case, therefore, it
is not evidence." (supra) Faddi v. State of M.P. [(1964)
6 SCR 312] struck a slightly different note and stated
that 'if the FIR given by the accused contains any
admission as defined in Section 17 of the Evidence Act
there is no bar in using such an admission against the
maker thereof as permitted under Section 21 of the Act,
provided such admission is not inculpatory in character.'
(sic). A caution was struck by a three Judge Bench of the
Hon'ble Supreme Court in Aghnoo Nagesia (supra) that when
the statement in the FIR given by an accused contains
incriminating materials and it is difficult to sift the
exculpatory portion there from, the whole of it must be
excluded from evidence. Bandlamuddi Atchuta Ramaiah
(supra) then held:
"17. The legal position, therefore, is this:
A statement contained in the FIR furnished by
one of the accused in the case cannot, in any
manner, be used against another accused. Even as
against the accused who made it, the statement
cannot be used if it is inculpatory in nature
nor can it be used for the purpose of
corroboration or contradiction unless its maker
offers himself as a witness in the trial. The
very limited use of it is as an admission under
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Section 21 of the Evidence Act against its maker
alone unless the admission does not amount to
confession".
Sita Ram Bhau Patil v. Ramchandra Nago Patil, [(1977) 2
SCC 49] held : 'It, therefore, follows that admission is
relevant and it has to be proved before it becomes
evidence." (sic); which is the general purport of S. 21
too. Ext.P28 qualifies neither as a dying declaration nor
a confession nor an admission and fails to even serve the
purpose of a plain and simple prior statement; under
S.164, enabling contradiction or corroboration; since
here the accused has made the statement.
VIII. THE CHAIN OF CIRCUMSTANCES:
57. We have expressed our inability to accept
the extra judicial confession, the accused is said to
have made to PW20, Doctor and have also eschewed from our
consideration Ext.P28; either as a dying declaration
under S. 32 or a confession as required to be made under
sub-sections (2) to (4) of Section 164 or an admission
under Section 21. Though a statement under S.164, it
Crl.Appeal No.917 of 2020
cannot be used either for corroboration or contradiction.
The prosecution has then relied on the last seen together
theory, of a neighbour, PW6, having seen the mother and
child together in the backyard of their house. The
learned Prosecutor relied on S.106 of the Evidence Act
and the lack of explanation by the mother with reliance
placed before us, on, Trimukh Maroti Kirkan v. State of
Maharashtra, [(2006) 10 SCC 681] which held :
"22. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence to show
that shortly before the commission of crime they
were seen together or the offence takes place in
the dwelling home where the husband also
normally resided, it has been consistently held
that if the accused does not offer any
explanation how the wife received injuries or
offers an explanation which is found to be
false, it is a strong circumstance which
indicates that he is responsible for commission
of the crime. In Nika Ram v. State of H.P.
(1972) 2 SCC 80. ... xxx".
It is only one circumstance and would not suffice to hold
the accused guilty if it is the only circumstance. In
Arjun Marik v. State of Bihar[(1994) 2 SCC 372] though
the accused were last seen together with the deceased,
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having stayed together for the night in another persons
house, it was observed :
"31. ... it is settled law that the only
circumstance of last seen will not complete the
chain of circumstances to record [a] finding
that it is consistent only with the hypothesis
of the guilt of the accused and, therefore, no
conviction, on that basis alone, can be
founded."
Sahadevan v. State of T.N., [(2012) 6 SCC 403] followed
Arjun Marik (supra) to hold :
"The Court has taken the consistent view that
where the only circumstantial evidence taken
resort to by the prosecution is that the accused
and the deceased were last seen together, it may
raise suspicion but it is not independently
sufficient to lead to a finding of guilt".
58. Even otherwise, admittedly the mother and
child were together in the house and PW8 also had access
to the house. According to PW8, he had gone for work in
the morning and returned only at 8.30 p.m; his return
having been vouched by another neighbour, PW7. But the
fact remains that the house was locked and the key was
kept 'in the usual place', using which the husband
entered the house. The wife, the accused has a case that
Crl.Appeal No.917 of 2020
the husband had returned in the afternoon and had
physically assaulted her and their child. The prosecution
has not attempted to establish that the husband was
employed throughout the day, which they could have easily
done by examining the employer. In failing to have, so
established the fact of the husband being elsewhere,
specifically in his work place, the prosecution has
failed to exclude every possible hypothesis other than
the guilt of the accused as has been held in Sharad Birdi
Chand Sarda V. State of Maharashtra [(1984) 4 SCC 116)].
We notice that the trial court had considered it possible
that the accused locked the front door, kept the key
outside and entered the house through the back door. This
could equally apply to the husband or a third party, who
could have committed the act and left the house locked.
PW8 also is said to have arrived at 8.30 p.m and enquired
to his neighbour as to why there were no lights in his
house, possibly to establish an alibi; of not having been
inside the house, especially in the context of PW8 having
admitted to strained relationship with his wife, for the
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last few days. The last seen together theory does not
impress us since the key of the house was kept outside
and anybody could have accessed the house.
59. The attempt to take aid of S. 106 also fails
to impress us. Suffice it to notice State of W.B. v. Mir
Mohammad Omar, [(2000) 8 SCC 382], at page 393 :
"38. Vivian Bose, J., had observed that
Section 106 of the Evidence Act is designed to
meet certain exceptional cases in which it
would be impossible for the prosecution to
establish certain facts which are particularly
within the knowledge of the accused. In Shambhu
Nath Mehra v. State of Ajmer 1956 SCR 199 the
learned Judge has stated the legal principle
thus:
'This lays down the general rule that in
a criminal case the burden of proof is on
the prosecution and Section 106 is
certainly not intended to relieve it of
that duty. On the contrary, it is designed
to meet certain exceptional cases in which
it would be impossible, or at any rate
disproportionately difficult for the
prosecution to establish facts which are
'especially' within the knowledge of the
accused and which he could prove without
difficulty or inconvenience'.
The word 'especially' stresses that. It means
facts that are pre-eminently or exceptionally
within his knowledge."
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The accused was found unconscious at night, in the house
in which herself, her husband and the child were
residing. The mother and child were seen in the morning
between 10 and 11 and the house was locked from outside
with the key kept outside. There is no warrant at all for
finding a lack of explanation to be an incriminating
circumstance; not to mention the allegation of assault by
the husband inside the house, as later spoken of by the
accused.
60. The next circumstance relied on by the
prosecution is the recovery of the empty strip of Nitrest
10 mg from the waste basket found in the kitchen of the
house of occurrence. PW4 was the witness to the recovery,
through whom the recovery mahazar was not marked, though
confronted. In any event, PW4 does not say that he saw
the accused handing over the empty strip of medicine to
the I.O, nor does he remember from where he signed the
mahazar. The mahazar is seen at Ext.P6, which is dated
12.05.2016. The evidence of PW25 speaks of the recovery
made as per Ext.P6 under Ext.P6(a) disclosure. As pointed
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out by the learned counsel for the appellant, the said
object was not seen on the day when the inquest was
prepared and Ext.P5 scene mahazar was recorded.
Interestingly, Ext.P6 specifically speaks of the strip
recovered of 5 tablets containing 5 perforations with
half a tablet remaining in the empty strip. We pause
here, a moment, to point out that the statement and
declaration allegedly made by the accused speaks of she
having administered 5 tablets to the child; which is
belied by the half tablet remaining in the strip. Again,
this half tablet was not noticed in the property list
submitted before Court at Ext.P24 nor was it detected at
the time of receipt or examination at the FSL as evident
from Ext.P29 Certificate. More intriguingly, Ext.P24 is
the property list, by which the empty strip was produced
before the Magistrate; which does not contain any date.
The same has been received by the Magistrate on
06.08.2016, long after the recovery made on 12.05.2016.
61. Further suspicion arises with respect to the
procurement of the sleeping pills by the accused as
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spoken of by the prosecution witnesses. PW9 has no
acquaintance with the accused and sees her for the first
time in Court. She is said to have joined Neethi
Medicals, Karukutty as a Pharmacist on 29.04.2016. The
purchase of the tablets is said to have been made by the
accused on the previous day. PW9 produced Ext.P7 series
of bills before the I.O. PW10 had been working in Neethi
Medicals from 2014 onwards and she says that the accused
came for work last on 28.04.2016. PW10 deposes that she
worked with the accused for one month, while the alleged
statement of the accused is that she worked in the
particular medical shop for two months. It is also very
pertinent that PW9 to PW11 does not speak of the accused
having left the job on 28.04.2016, which prompted the
appointment of PW9, another Pharmacist on the very next
day. PW11, the Assistant Secretary of the Co-operative
Bank, which runs the medical store also speaks of the
accused having worked in the medical store for two
months, but does not speak of she having left the job on
28.4.2016. He was examined as a witness to Ext.P8
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mahazar, by which Ext.P7 series were seized.
62. Ext.P7 series is proffered by the
prosecution to prove the procurement of medicine by the
accused. Ext.P7(a) is an invoice by which the Neethi
Medical Store, Karukutty purchased medicine from a
Pharmaceutical Distributor. Ext.P7(b) is an item wise
sales report of Nitrest tablets made between 01.04.2016
to 18.05.2016, dated 18.05.2016, the date of seizure by
Ext.P8. It is signed by PW9, who joined the medical store
on 29.4.2016. Ext.P7(c) is the bill relied on by the
prosecution and the Court to find the procurement of the
said tablets by the accused. The bill is in the name of
one 'Irfan' and PW10 who speaks of the accused having
taken 5 Nitrest tablets and 10 tablets of Phexin has not
spoken of a bill having been issued in the name of
another for the above purchase. The trial court ought not
to have glossed over the factum of the invoice having
been issued in another persons name. Surprisingly, the
date shown on Ext.R7(c) is 28.4.2018 and it is again
signed by PW9, the Pharmacist who joined on 29.4.2016.
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This totally escaped the notice of the trial court.
Ext.P7(c) is a cash bill which is issued to the purchaser
and normally the purchaser is given that bill. It is also
pertinent that if Ext.R7(c) is relied on, for the purpose
of proving the procurement of the medicine by the accused
on 28.4.2016, there is no reason why it should contain
the signature of PW9, who joined on the next day. Ext. P7
(b) & (c) are obviously computer generated bills which
ought to be proved as provided under S.65B of the
Evidence Act, which has not been done [Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1].
The prosecution has miserably failed to prove the
purchase of Nitrest tablets or the recovery of the empty
strip from the house of the accused, which strip was also
not produced before Court, the same having not been
returned by the FSL. As for the evidence of the pesticide
bottle; we cannot but say that it is very artificial;
without which, imbibing of pesticide by the accused could
have been found. The medical evidence and the statement
made by the accused to the Doctor at MAGJ Hospital, PW14;
Crl.Appeal No.917 of 2020
revealed from Ext.P10, proves this aspect without
definitely establishing whether it was voluntary or
forceful administration. The evidence of PW13 who sold
the pesticide to the accused and his identification of
the bottle purchased an year back; of a branded product
is very artificial and not worthy of credence.
63. The prosecution case is that the mother, the
accused, administered sleeping pills to her child, slit
the veins on his right wrist and then smothered the child
with a turkey towel. Later, the mother is said to have
voluntarily consumed pesticide and slit the vein on her
wrist in an attempt to commit suicide. The statement made
to the Doctor and the confession recorded have been
completely eschewed by us for reason of the same being
not admissible; which reasons have been stated by us in
the earlier paragraphs. The empty strip of the Nitrest
tablet and the purchase of the same by the accused,
though attempted to be established by examining witnesses
and marking documents, the entire exercise has turned
futile. The last seen together theory does not have any
Crl.Appeal No.917 of 2020
legs to stand, since the possibility of intrusion into
the house by the husband of the accused or a trespass by
a third party cannot be completely ruled out. Though the
extra-judicial confession and the so called dying
declaration have been disbelieved by us, it is very
pertinent that the accused who made the confessions do
not at all speak of a smothering. There can be no
inference that a mother, who administered sleeping pills
to the son and slit the veins of his wrist would then
smother the child. The question arises, if she did, why
did she not state it before the Doctor or the Magistrate.
64. The Doctor who conducted the post-mortem,
PW15 categorically stated that death was caused by
smothering and neither by reason of the cut injury found
on the wrist nor by imbibing any poison, ruling out the
cause of death by administration of sleeping pills. The
prosecution has failed to bring home the guilt of the
accused and establish it beyond all reasonable doubt. We
admit to a lingering suspicion which cannot take the
place of proof beyond all reasonable doubt. We entertain
Crl.Appeal No.917 of 2020
other suspicions also, regarding the cause of death of
the child by smothering; reasonable hypothesis. The
purchase and administration of sleeping pills also has
not been established. We are unable to sustain the
conviction found by the trial court, which is based on
mere surmises and conjectures.
65. The trial court also failed to consider
the existence of a reasonable hypothesis of innocence
of the accused. The Hon'ble Supreme Court in Shankarala
Gyarasilal Dixit v. State of Maharashtra [1981(2) SCC 35]
despite existence of many compelling circumstances,
both factual and scientific, acquitted the accused of
the charge of rape and murder of a five year old girl,
for reason of prosecution having not established the
presence of the accused in his house, where the girl
was found dead. While cautioning that the guilt of
the accused needs only to be established beyond the
'shadow of reasonable doubt' and not 'shadow of doubt';
it was also held that 'the test which requires the
exclusion of other alternative hypothesis is far
Crl.Appeal No.917 of 2020
more rigorous than the test of proof beyond
reasonable doubt'.(sic) Their Lordships contemplating a
legitimate query as to why so many people conspired
to involve the accused falsely; it was observed that
in criminal cases it is not always easy to answer
such questions. Their Lordships succinctly observed:
'Besides human nature is too willing, when faced with
brutal crimes to spin stories out of strong
suspicions'(sic).
66. We have expressed our views on invocation of
S.311 Cr.P.C, specifically to summon the Doctor earlier
examined as PW20, who produced the case sheet in which
there are interpolations made as found by us and admitted
by the witness itself. The learned Sessions Judge also
erred in the marshalling of facts, scrutiny of evidence
as also understanding the decisions cited. We give the
accused, the benefit of doubt and acquit her. The
appellant/accused shall be released forthwith, if in
custody and if released on bail, the bail bonds in this
case shall stand cancelled.
Crl.Appeal No.917 of 2020
Appeal allowed.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
sp/lgk/jma/vku.
Crl.Appeal No.917 of 2020
APPENDIX
COURT EXTHIBITS:
COURT EXT.X1 - I.D.CARD OF THE DOCTOR, ISSUED FROM THE LITTLE FLOWER
HOSPITAL AND RESEARCH CENTRE, ANGAMALY, KERALA.
COURT EXT.X2 - PHOTOCOPY OF CASE SHEET HANDED OVER TO THE DEFENCE
OUNSEL BY THE COURT BELOW, WHICH IS UNDER SEALED COVER.
