Kerala High Court
Ramatha vs State Of Kerala on 25 March, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:25024
Crl. Appeal No. 592/2020 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
CRL.A NO. 592 OF 2020
AGAINST THE JUDGMENT DATED 24.10.2019 IN SC NO.686 OF 2015 OF
SPECIAL COURT UNDER POCSO ACT, PALAKKAD
APPELLANT/ACCUSED NO. 1:
RAMATHA
AGED 46 YEARS
W/O. DURAISWAMY, NEDUMBALLAM, PARAMEDU, PATTANCHERRY,
VANDITHAVALAM, PALAKKAD DISTRICT 678 601.
BY ADVS.
R.O.MUHAMED SHEMEEM
SMT.NASEEHA BEEGUM P.S.
RESPONDENT/DEFACTO COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE INSPECTOR OF POLICE KUZHALMANNAM
POLICE STATION, CHANDAPURA, KUZHALMANNAM, PALAKKAD
DISTRICT 678 702, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
BY SMT. NEEMA T.V, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl. Appeal No. 592/2020 :2:
JUDGMENT
Raja Vijayaraghavan, J.
The appellant is the 1st accused in S.C.No. 686 of 2015 on the files of the I
Additional Sessions Judge, Palakkad. In the said case, she was accused of
having committed infanticide and was charged along with her mother, Pazhani
Amma, for committing offences punishable under Sections 302 and 202 r/w
Section 34 of the IPC. The 2nd accused passed away during the course of
proceedings. By the impugned judgment dated 24.10.2019, the appellant was
found guilty and was convicted and sentenced to undergo imprisonment for life
for the offence punishable under Section 302 of the IPC. The charges against the
2nd accused were recorded as abated.
The gist of the prosecution case:
2. The appellant was a lady aged 40 years as of 1.01.2015. She
became pregnant and gave birth to a baby boy on 01.01.2015 at the Govt.
Women and Child Hospital, Palakkad. She was allegedly discharged along with
the child on 05.01.2015 in the evening. Her mother, the 2nd accused, was also
with her. The prosecution alleges that the appellant was seriously embarrassed
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that she became pregnant that too after the marriage of her daughter. While
returning from the hospital, the appellant is alleged to have thrown the newborn
child into the Kambalathara Canal at about 7.30 p.m., on the same day. The child
suffered a head injury consequent to the fall and thereafter drowned to death. As
against the 2nd accused, the allegation is that despite knowing about the
infanticide committed by her daughter, she failed to disclose the information to
the law enforcement authority. It is on these allegations that the appellant was
charged with murder.
Registration of Crime and Investigation
3. On 06.01.2015, the baby was found floating in the canal by PW5
(Lakshmi). She blocked the baby from floating away and informed PW1
(Shajahan), who was running a petty shop on the property of PW5. PW1 took the
body from the canal and immediately rushed to the police and furnished Ext.P1
FIS at 11.50 hours on the same day, based on which Ext.P1(a) FIR was registered
under Section 174 of the Cr.P.C. PW15, the Sub Inspector, Kuzhalmandam Police
Station conducted the inquest over the dead body of the child and prepared
Ext.P3 inquest report.
4. PW14 (Purushothaman Pillai) was the Station House Officer during
the relevant time. Based on the autopsy report submitted by PW12, the District
Police Surgeon, Ext.P10 report was submitted before the court adding Section
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302 of the IPC. The officer then conducted an enquiry in the nearby hospital and
found that the applicant herein had delivered a child at the District Hospital on
01.01.2015 and that she was discharged on 05.01.2015. She was questioned and
she is alleged to have confessed to being involved. Her arrest was recorded on
09.01.2015. She was then sent to the Medical Examiner for collection of sample
blood for the purpose of DNA analysis.
5. PW18 is the Investigating Officer. On the basis of the information
furnished by the appellant and as shown by her, the place where the body of the
child was thrown into the canal was located and Ext.P15 mahazar was prepared.
He submitted Ext.P16 report incorporating the name of the 2nd accused. The
samples of blood of the child were seized for the purpose of DNA analysis as per
Ext.P6 mahazar. The seized items were forwarded to the court as per Ext.P18
forwarding note. The investigation was then taken over by PW19 who took over
the investigation from 22.1.2015. On 27.3.2015, the 2nd accused was arrested as
per Ext.P20 arrest memo. He seized the treatment records for the 1st accused as
per Ext.P5 mahazar and Ext.P21 FSL report. After the conclusion of the
investigation, the final report was laid before the court.
Proceedings in Trial
6. Committal proceedings were initiated in accordance with the law
and the case was committed to the Court of Session, Palakkad from where the
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same was made over to the I Additional Sessions Judge. After hearing the
prosecution and the accused, charges under Section 302 of the IPC were framed
against the appellant and under Sections 201 and 202 were framed against the
2nd accused. They pleaded not guilty when the same was read over and claimed
that they be tried in accordance with law. As stated earlier, the 2nd accused
passed away in the course of proceedings.
Evidence let in
7. The prosecution examined PWs 1 to 19 and through them,
Exts.P1 to P21 were marked. After the close of prosecution evidence, the
incriminating materials arising from the prosecution evidence were put to the
accused under Section 313 of the Cr.P.C. The accused denied the
circumstances and maintained that she was innocent. She filed a statement
wherein it was stated that her husband used to visit her infrequently and in
her relationship with him, she became pregnant. She was admitted to the
hospital and her husband had accompanied her. After her delivery, her
husband took the child by making her believe that the child would be handed
over to an orphanage at Pollachi. Believing the words of her husband, the
child was handed over. She denied any wrongdoing on her part. As the court
felt that this was not a fit case for acquittal, an opportunity was granted to
adduce defence evidence. However, no defence evidence was adduced.
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Findings of the learned Sessions Judge
8. The learned Sessions Judge, after a detailed evaluation of the
evidence, came to the conclusion that the baby had died due to the combined
effects of head injury and drowning and to arrive at the said finding, Ext.P9
postmortem certificate and the evidence tendered by PW12, the Doctor who
conducted the autopsy, was relied upon. On the basis of Ext.P21 DNA
analysis, based on blood samples of the mother and child, the court concluded
that the appellant is the biological mother of the deceased male child. The
learned Sessions Judge also placed reliance on the evidence of PW18, the
investigating officer, who gave evidence that the appellant had pointed out the
place where she had thrown the child into the canal. The court concluded that
the above circumstances were conclusive enough to arrive at the unmistakable
conclusion that the circumstances proven were not explainable on any other
hypothesis except that the accused is guilty.
Contentions of the appellant
9. Sri. R.O. Mohammed Shemeem, the learned counsel appearing
for the appellant, submitted that the prosecution has failed to establish the
chain of circumstances so as to negate the innocence of the accused and to
bring home the offences beyond any reasonable doubt. According to the
learned counsel, if the appellant had carried the child for 9 months, there was
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absolutely no reason for her to deliver the child and then extinguish the life of
the child by throwing him into the canal. He would point out that the learned
Sessions Judge failed to appreciate the contentions advanced by the appellant
that her husband had taken away the child by assuring her that his well-being
would be taken care of. It is further submitted that the investigating officer
admitted in cross-examination that he did not conduct any investigation in that
line by questioning Duraiswamy, the husband of the appellant. No witnesses
were examined to establish that the appellant while being discharged from the
hospital had carried the child with her or that she was seen around the area
where the child was thrown into the river. It is further submitted that the
learned Sessions Judge failed to appreciate the facts that the prosecution has
failed to establish any motive on the part of the appellant to murder her own
child. It is further submitted that the learned Sessions Judge had accepted the
version of the investigating officer that the appellant had pointed out the
location where she had purportedly thrown the child into the canal in the
absence of a properly proven confessional statement made by the appellant.
According to the learned counsel, there is no evidence whatsoever to establish
that it was the appellant who had thrown the child into the canal. According to
the learned counsel, reliance ought not to have been placed on the DNA
analysis report without the expert being examined before the court.
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Submissions of the learned Public Prosecutor
10. In response, it is submitted by Smt. Neema T.V., the learned
Public Prosecutor that the prosecution has established without any pinch of
doubt that the appellant was the mother of a 5-day-old child who was found
with injuries on his body. The foundational facts having been proven by the
prosecution, it is for the appellant to discharge the burden and establish how
the child was found dead. The learned Public Prosecutor would point out that
in her statement filed at the stage of Section 313 of the Cr.P.C., the appellant
had admitted that she had delivered the child a few days prior to the incident
and she was discharged from the hospital on the date of incident. It is further
submitted that the cumulative evidence let in by the prosecution and the
proven circumstances establishes with sufficient clarity that it was the
appellant who had thrown the child into the canal and committed his murder.
11. We have considered the submissions advanced.
12. We shall now deal with the evidence let in by the prosecution to
prove the complicity of the appellant.
Evaluation of the Evidence
13.1 PW1 is one Shajahan, who runs a petty shop near the Annakode
bus stop. During the first week of January 2015, PW5, the owner of the
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property in which his shop is situated, called PW1 and pointed out a baby
floating in the canal adjacent to his petty shop. PW5 blocked the baby from
drifting away using a stick. PW1 retrieved the child from the canal. PW1
noticed that it was a newborn baby, a few days old, but found that it was
dead. Accordingly, PW1 proceeded to the police station and gave the First
Information Statement, which was marked as Ext. P1. PW5 Lakshmy deposed
that PW1 had been running the petty shop on her property. On 06.01.2015 at
about 9:00 a.m., while she was grazing her cattle, she noticed a baby floating
in the canal. She prevented the body from flowing away using a wooden stick
and immediately called PW1. PW1 then took the baby out of the canal, and it
became evident that it was the dead body of an infant. According to PW5, the
baby appeared to be approximately seven days old.
13.2 PW2 and PW3 are immediate neighbours of the appellant.
13.3 PW2 (Pazhanimala) deposed that the 1st accused is the daughter
of the 2nd accused and they are his neighbours. He stated that the 1st
accused has a married daughter. Her husband has never visited the appellant
even during her daughter's marriage. After the daughter's marriage, which was
solemnized about 3 years ago, he heard that the 1st accused had a tumour in
her stomach. The mother used to tell him that the appellant was taking
medication for the same. It was only later, when the police came for
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investigation, that PW2 came to know that the 1st accused had given birth to
a child at the hospital. It was only after she returned from the hospital that
she began coming out of her house again. The witness however denied that
he had stated to the police that he had seen the husband of the appellant at
her house before her daughter's marriage and the said portion was marked as
Ext.P2.
13.4. PW3 (Omana), another neighbour, deposed that the marriage of
the daughter of the accused took place in the year 2015. Thereafter, the 1st
accused never went out for work. She has seen the husband of the appellant
once. The mother of the appellant told her that the appellant was suffering
from a stomach tumour. Later, she came to know that the tumour was in fact a
pregnancy and that the 1st accused underwent a delivery at the District
Hospital, Palakkad. She returned home five days after her hospital admission.
It was brought out in cross-examination that she had no direct knowledge of
what she had stated in her chief examination.
13.5. PW4 is an attestor to Ext. P3 inquest over the dead body of the
child.
13.6. PW6 is the Head Nurse of the Women & Children Hospital,
Palakkad, who signed as a witness in Ext. P4, seizure mahazar, documenting
the collection of samples from the 1st accused for DNA profiling.
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13.7. PW7 is a witness to the Ext.P5 seizure mahazar relating to the
case sheet of the 1st accused, which was handed over to the police by the
Medical Superintendent of the Women & Children Hospital.
13.8. PW8 had attested to the Ext.P6 mahazar relating to the seizure
of blood samples collected by the District Police Surgeon during the
post-mortem examination of the child's body.
13.9. PW9 is the Village Officer who prepared the Ext.P7, scene plan of
the location from where the dead body was recovered by PW1 from the canal.
PW10 is a doctor at the Women & Children Hospital, Palakkad, who collected
blood samples from the 1st accused for the purpose of DNA profiling.
13.10. PW10 was working as a consultant, Women and Children
Hospital, Palakkad. She stated that she examined the appellant. She noted
that the appellant had delivered a child on 1.1.2015 at 6.51 p.m. at
Government Women & Children Hospital, Palakkad and was discharged on
5.1.2015. Breast milk was seen on both breasts. She had also collected blood
samples for DNA profiling. The certificate issued by her after examination was
marked as Ext.P8.
13.11. PW11 is another witness to Ext.P5, the seizure mahazar relating
to the case sheet of the 1st accused, which was produced before the Circle
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Inspector.
13.12. PW12 is the District Police Surgeon who conducted the
post-mortem examination of the child's dead body. He stated that he
conducted the post-mortem examination of the body of an unidentified male
infant, estimated to be about one week old, in connection with Crime No.20 of
2015 of Pudunagaram Police Station. He noted as many as 14 antemortem
injuries on the body of the child. PW12 opined that the cause of death was the
combined effects of head injury and drowning. He estimated the age of the
baby to be between four to twelve days, and the approximate time since death
to be more than 12 hours and less than 36 hours prior to the time the body
was kept in the freezer (i.e., 2:25 p.m. on 06.01.2015), with the highest
probability being within 18-24 hour range. He further stated that he had
collected samples for DNA profiling and handed them over to the police. He
clarified that the head injury could have been caused by forceful contact with a
hard surface. Noting the extensive scalp contusion in contrast to the relatively
thin subdural and subarachnoid bleeding, and considering the internal findings
consistent with drowning, he opined that it was possible the child sustained
the head injury during or prior to submersion and that drowning may have
been the terminal event. The post-mortem certificate issued by PW12 is
marked as Ext.P9. PW12 also deposed that even if drowning had not occurred,
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the head injury alone would have been sufficient to cause death. During
cross-examination, he reiterated that the nature of the injuries was indicative
of a fall with considerable force.
13.13. PW13 is the Grade Sub-Inspector of Pudunagaram Police
Station, who recorded the First Information Statement (Ext.P1) of PW1 and
registered the FIR (Ext.P1(a)) under Section 174 of the Code of Criminal
Procedure.
13.14. PW14 is another Grade Sub-Inspector who took over the
investigation following the inquest conducted by PW15.
13.15. PW15 is the Sub-Inspector who conducted the inquest of the
dead body.
13.16. PW16 is the Superintendent of the Government Women &
Children Hospital, Palakkad, who produced the case sheet of the 1st accused
before the police. PW17 is a scene mahazar witness, who attested the site
where the 1st accused allegedly threw the child into the canal.
13.17. PW18 is the Circle Inspector of Police who conducted the major
portion of the investigation in this case. PW19 is another Circle Inspector of
Police who handled the final phase of the investigation.
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Whether the death of the infant was homicidal
14. On an evaluation of the evidence, we find that there is no serious
dispute about the cause of death of the child involved in the case. The
evidence tendered by PW12 is emphatic and show that the death was due to
the combined effects of head injury and drowning.
Is the appellant the biological mother of the infant?
15. The next question is whether the child whose body was found in
the canal is the child born to the appellant. The fact that blood samples of the
child were collected as per procedure and in accordance with law has come
out from the evidence of PW12, PW8, and Ext. P6 seizure mahazar. The
seizure of blood samples of the child has come out from the evidence of
PW10, PW6, and Ext. P4 seizure mahazar. The samples were then forwarded
to the Director, Forensic Science Laboratory, Thiruvananthapuram, through
Ext.P18 forwarding note. Ext.P21 report reveals that the alleged mother,
Ramatha (appellant), is the biological mother of the deceased male child. The
contention of the appellant is that without examination of the analyst who
conducted the DNA Analysis, no reliance can be placed on the report. We have
gone through the report of analysis. It contains all the data and the reasons
which persuaded the expert to arrive at the conclusion seen in the report. As
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held by the Apex Court in Rajesh Kumar v. State Govt. of NCT of Delhi1,
a bare reading of sub-sections (1) and (2) of Section 293 shows that it is not
obligatory that an expert who furnishes his opinion on the scientific issue of
the chemical examination of substance, should be of necessity made to depose
in proceedings before the court. In that view of the matter, it can very well be
concluded that the appellant is the biological mother of the deceased male
child who was found in the canal by PW1 and PW2.
16. The next question is whether the prosecution has established
that it was the appellant who had thrown the child into the canal and thereby
committed the murder of the child. To prove the said aspect, the prosecution
relies on certain inferences and contends that it is for the appellant to
discharge the burden since the foundational facts have been proved by them.
Principles as regards appreciation of evidence in cases involving
circumstantial evidence
17. Before proceeding further, it would be profitable to remember
that it has been settled by the Apex Court in a series of authoritative
pronouncements that where the evidence is circumstantial, the circumstances
from which the conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be consistent only with
[(2008) 4 SCC 493]
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the hypothesis of the guilt of the accused. Again, the circumstances should be
of a conclusive nature and tendency, and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words, there
must be a chain of circumstances so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability, the
act must have been done by the accused. The Court has also indicated that
the circumstances concerning "must or should" and not "may be" established.
There is not only a grammatical but a legal distinction between "may be
proved" and "must be or should be proved" ( See Shivaji Sahabrao Bobade
v. State of Maharashtra2.
Statement filed by the appellant under Section 313(1)(b) of the
Cr.P.C.
18. The appellant had filed a statement when she was examined
under Section 313 of the Code wherein she after reiterating her innocence
stated that she had in fact delivered a child. She stated that her husband used
to come home in connection with her daughter's marriage and they had a
relationship and she became pregnant. She also stated that her husband was
with her in the hospital and that he was looking at the affairs thereafter.
[(1973) 2 SCC 793]
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Before she was discharged, her husband took the child by assuring her that
the child would be handed over to the orphanage at Pollachi. According to her,
she went home after discharge with empty hands and the child was not with
her.
Alleged confession made by the accused
19. One of the main circumstances that the prosecution relies on is
the evidence of the PW18, investigating officer, who stated that on the
appellant being questioned, she confessed to her guilt and led the police to the
place where she had thrown the child into the canal. The accused had made a
confession and pointed out the place where the child was thrown by her. This
is the portion in his evidence where the above aspect has been stated.
ഒന്നാം പ്രതി നയിച്ച പ്രകാരം സംഭവസ്ഥലത്തെത്തി സംഭവസ്ഥല മഹസർ
തയ്യാറാക്കി. അതാണ് എന്നെ കാണിച്ച EXT.P15 . എന്നെ കൂട്ടിക്കൊണ്ടുപോയാൽ കുട്ടിയെ
വലിച്ചെറിഞ്ഞ സ്ഥലം കാണിച്ചുതരാം എന്ന് പ്രതി മൊഴിനല്കിയതിന്റെ അടിസ്ഥാനത്തിലാണ്
സംഭവസ്ഥല മഹസർ തയ്യാറാക്കിയത്.
20. The Investigating Officer prepared Ext. P15, the scene mahazar,
purportedly based on the alleged disclosure statement made by the appellant.
However, the mahazar merely records that it was prepared pursuant to the
appellant pointing out the place in question. The exact words used by the
appellant--the ipsissima verba--are neither extracted nor recorded in the
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mahazar. Furthermore, when the Investigating Officer tendered evidence
before the court, he failed to state the precise words allegedly spoken by the
appellant at the time of the disclosure. The question is whether the above
omission makes the discovery of the fact inadmissible under Section 27 of the
Evidence Act, 1872.
21. One of the contentions advanced by the learned counsel is that
in view of the failure of the investigating officer to record the confessional
statement in the exact words of the accused, no reliance can be placed on the
same. The question as to whether a 'disclosure statement' must be reduced
into writing in order to make such a statement admissible in evidence, under
Section 27 of the Evidence Act, is an area that has not been explored much. It
would be apposite to take note of Section 25 to Section 27 of the Indian
Evidence Act to answer the question posed by the learned counsel.
22. Confession to police officer not to be proved.-- No confession,
made to a police officer, shall be proved as against a person accused of any
offence.
26. Confession by accused while in custody of police not to be
proved against him.-- No confession made by any person, whilst he is
in the custody of a police officer, unless it be made in the immediate
presence of a Magistrate, shall be proved as against such person.
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27. How much information received from accused may be
proved.-- Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
23. A bare reading of Section 25 of the Evidence Act makes it clear
that the provision mandates that no confession made, to a police officer, shall
be proved as against a person accused of an offence. Section 26 provides that
the confession, made by an accused person, while in the custody of a police
officer, cannot be proved against him unless, of course, the confession is made
in the immediate presence of a magistrate. Section 27 carves out an exception
inasmuch as it provides that when, any fact is deposed to, as discovered in
consequence of information received from a person accused of any offence,
while the accused person is in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to
the fact thereby discovered, may be proved.
24. In Mohd. Inayatullah v. State of Maharashtra3, the Apex
Court observed that the words "so much of such information" as relates
distinctly to the fact thereby discovered, are very important and the whole
force of the section concentrates on them. The ban as imposed by the
[(1976) 1 SCC 828]
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preceding sections was presumably inspired by the fear of the legislature that
a person under police influence might be induced to confess by the exercise of
undue pressure. Under Section 27 as it stands, in order to render the evidence
leading to the discovery of any fact admissible, the information must come
from any accused in the custody of the police. The statement which is
admissible under Section 27 is the one which is the information leading to
discovery. Thus, what is admissible being the information, the same has to be
proved and not the opinion formed on it by the police officer. In other words,
the exact information given by the accused while in custody which led to
recovery of the articles has to be proved.
25. It is, therefore, necessary for the benefit of both the accused and
the prosecution that information given should be recorded and proved and if
not so recorded, the exact information must be adduced through evidence.
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on the principle
that if any fact is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The information might be
confessional or non-inculpatory in nature but if it results in the discovery of a
fact, it becomes reliable information. It is now well settled that the recovery of
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an object is not the discovery of a fact envisaged in the section. The decision
of the Privy Council in Pulukuri Kottaya v. Emperor4 is the most-quoted
authority for supporting the interpretation that the "fact discovered" envisaged
in the section embraces the place from which the object was produced, the
knowledge of the accused as to it, but the information given must relate
distinctly to that effect (See State Of Maharashtra v. Damu5). No doubt,
the information permitted to be admitted in evidence is confined to that
portion of the information which "distinctly relates to the fact thereby
discovered". The information to get admissibility need not be so truncated as
to make it insensible or incomprehensible. The extent of information admitted
should be consistent with understandability. The mere statement that the
accused led the police and the witnesses to the place where he had concealed
the articles is not indicative of the information given. A statement made under
Section 27 is allowed to be used on the basis of the view that when a fact is
actually discovered consequent to the information given by an accused person,
some guarantee is afforded that the disclosure statement was true. Thus,
Section 27 permits limited use of the information, which an accused may have
disclosed to the police, while he was in the custody of the police. (See State
of Karnataka v David Rozario and Ors.6
[AIR 1947 PC 67]
[(2000) 6 SCC 269]
2002 (7) SCC 728)
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26. It is necessary to point out, at this stage, that a fact discovered
is not the same as the recovery of an incriminating material or object, such as
a weapon of assault, etc. The Apex Court has held that the discovery of fact is
not to be confused or equated with the recovery of incriminating material
objects, such as weapons of assault, etc. The fact discovered embraces the
place from where the object was produced/recovered and the knowledge of
the accused as regards such subject matter.
27. In Avtar Singh v. State of Rajasthan7, the Apex Court has
summarized the requirements of Section 27 as follows:
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision has
nothing to do with the question of relevancy. The relevancy of the fact
discovered must be established according to the prescriptions relating to
relevancy of other evidence connecting it with the crime in order to
make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the accused's own
act.
(4) The person giving the information must be accused of any
offence.
[(2004) 10 SCC 657]
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(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest is
inadmissible.
28. The principles laid down in the judgments above make it
abundantly clear that though a written record of the statement, made by the
accused, leading to the discovery of a fact, is not necessary in order to make
the statement admissible in evidence, there must be evidence, on record, to
show that before discovery of fact took place, a statement was made by the
accused, though such statement may not have been reduced into writing. The
extent of information admitted should be consistent with understandability.
The mere statement that the accused led the police and the witnesses to the
place where he had concealed the articles is not indicative of the information
given.
29. In Bodhraj v. State of J&K8, the Apex Court Court, crystallised
the position by holding as under :
"The statement which is admissible under Section 27 is the
one, which the information leading to the discovery. Thus, what is
[2002] Supp SCR 67
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admissible being the information, the same has to be proved and not
the opinion formed on it by the police officer. In other words, the exact
information given by the accused while in custody which led to the
recovery of the articles has to be proved. It is, therefore, necessary for
the benefit of both the accused and the prosecution that information
given should be recorded and proved and if not so recorded, the exact
information must be adduced through evidence.
30. In Ramanand alias Nandlal Bharti Vs. State of Uttar
Pradesh9, in the context of recovery of a weapon under Section 27 of the
Indian Evidence Act on the basis of an alleged disclosure statement made by
the accused, the Apex Court held that in the absence of exact words,
attributed to an accused person, as a statement made by him being deposed
by the investigating officer in his evidence, and also without proving the
contents of the panchnama, the Courts were not justified in placing reliance
upon the circumstance of discovery.
31. A full Bench of the Gauhati High Court in Rajiv Phukan & Ors.
v. The State Of Assam10 had occasion to consider the very same issue and
after referring to all past precedents came to the conclusion that even when a
statement, leading to discovery of fact, has not been reduced into writing,
such a statement is still admissible in evidence, though the probative value
thereof would depend on the facts and circumstances of a given case. A
[2022 SCC OnLine SC 1396]
[2010 CRLJ 338]
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'disclosure statement', to be admissible under Section 27 of the Evidence Act,
is not statutorily required to be reduced into writing, though prudence
demands that such information should be reduced into writing in order to
enable the Court to know exactly as to what the accused is allegedly to have
stated and the extent to which the information given by him is admissible. We
respectfully concur with the observations above. In the case on hand, the
exact words of the accused have neither been recorded in the mahazar
prepared nor have the same been proved by the prosecution in accordance
with law. In that view of the matter, we cannot agree with the conclusion
arrived at by the learned Sessions Judge that the alleged statement said to
have been given by the appellant to the investigating officer can be accepted
and is relevant under Section 27 of the Indian Evidence Act.
Will Section 106 of the Evidence Act relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt?
32. Now we shall come to the question as to whether the learned
Sessions Judge was justified in holding that it was the burden of the appellant
to prove her case that her husband had taken away the child from her as
stated by her in her 313 statement. Before dealing with Section 106 of the
Indian Evidence Act, we shall narrate certain aspects that came out while the
investigating officer was cross-examined.
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33. PW18, the Investigating Officer, candidly admitted that he had
not conducted any investigation to ascertain whether either of the accused
was seen in or around the area where the child was allegedly thrown into the
canal. He further deposed that he had not made any enquiries to verify
whether the marriage between the appellant and her husband was subsisting
at the relevant point in time. Importantly, he also admitted that he had not
taken any steps to trace the whereabouts of the appellant's husband, nor had
he conducted any investigation to determine whether the husband had visited
the hospital during or after the delivery. PW18 further stated that there were
several party offices near the location where the appellant is alleged to have
disposed of the child's body into the canal. Yet, no effort was made to examine
anyone from those establishments to verify whether the appellant or her
mother were seen in the vicinity at the relevant time. He also admitted that he
did not enquire whether the child was in the custody of the appellant at the
time of her discharge from the hospital.
34. The only piece of acceptable evidence established by the
prosecution is that the appellant delivered a child on 01.01.2015, was
discharged from the hospital on 05.01.2015 and that the child's dead body was
discovered in the canal on the morning of the next day, i.e., 06.01.2015.
However, there is a complete evidentiary vacuum with respect to crucial
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facts--such as whether the child was indeed with the appellant at the time of
discharge, whether the husband was present at the hospital or subsequently,
or whether the appellant and her mother had occasion to go near the canal
where the body was allegedly thrown. No witnesses were cited or examined to
establish these vital linking circumstances. In the absence of direct or
circumstantial evidence connecting the appellant with the act of disposing of
the child, the prosecution appears to rely heavily on Section 106 of the Indian
Evidence Act, attempting to shift the burden onto the appellant to prove that
she was not responsible for the death or that the child died under different
circumstances.
35. The critical legal question that arises is: Can such a course be
adopted by the prosecution--relying solely on Section 106 without first
discharging its primary burden of proving the foundational facts necessary to
invoke the provision?
36. Section 106 reads as under:
S. 106. When any fact is especially within the
knowledge of any person, the burden of proving that fact is
on him."
37. Section 106 is an exception to Section 101. Section 101 lays
down the general rule about the burden of proof.
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S.101.- Whoever desires any court to give judgment as to
any legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist.
llustration (a) says--
"A desires a court to give judgment that B shall be punished for
a crime which A says B has committed.
A must prove that B has committed the crime."
38. In Shambu Nath Mehra v. State of Ajmer,11 the oft-quoted
judgment on Section 106 IEA, Vivian Bose (J) has succinctly and with great
clarity laid down the circumstances under which Section 106 would come into
play. The observations are illuminating:
9. 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. If the section were to be interpreted otherwise, it
would lead to the very startling conclusion that in a murder case,
the burden lies on the accused to prove that he did not commit
1956 SCC OnLine SC 27
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the murder because who could know better than he whether he
did or did not. It is evident that that cannot be the intention and
the Privy Council has twice refused to construe this section, as
reproduced in certain other Acts outside India, to mean that the
burden lies on an accused person to show that he did not
commit the crime for which he is tried. These cases are Attygalle
v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All
ER 36, 49]
39. In State of W.B v. Mir Mohd. Omar and Ors.12, the Apex
Court after relying on the earlier precedents including Shambu Nath (supra)
explained the position as under:
31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be taken
as a fossilised doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption is not alien to
the above rule, nor would it impair the temper of the rule. On the
other hand, if the traditional rule relating to burden of proof of
the prosecution is allowed to be wrapped in pedantic coverage,
the offenders in serious offences would be the major
beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in
establishing the afore-narrated circumstances, the court has to
presume the existence of certain facts. Presumption is a course
recognised by the law for the court to rely on in conditions such
as this.
(2000) 8 SCC 382
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33. Presumption of fact is an inference as to the existence
of one fact from the existence of some other facts, unless the
truth of such inference is disproved. Presumption of fact is a rule
in law of evidence that a fact otherwise doubtful may be inferred
from certain other proved facts. When inferring the existence of
a fact from other set of proved facts, the court exercises a
process of reasoning and reaches a logical conclusion as the
most probable position. The above principle has gained
legislative recognition in India when Section 114 is incorporated
in the Evidence Act. It empowers the court to presume the
existence of any fact which it thinks likely to have happened. In
that process the court shall have regard to the common course
of natural events, human conduct etc. in relation to the facts of
the case.
40. In Sucha Singh v State of Punjab13, it was held that Section
106 of the Evidence Act is not intended to relieve the prosecution of its burden
to prove the guilt of the accused beyond reasonable doubt, but the section
would apply to cases where the prosecution has succeeded in proving facts for
which a reasonable inference can be drawn regarding the existence of certain
other facts unless the accused by virtue of special knowledge regarding such
facts failed to offer any explanation which might drive the court to draw a
different inference.
41. We are of the considered view that, in the absence of positive
evidence to establish that the child was in the custody of the appellant at the
[(2001) 4 SCC 375]
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time of her discharge from the hospital, or that the appellant was seen leaving
the hospital with the child, coupled with the complete lack of evidence placing
her in or around the location where the child was allegedly thrown into the
canal, it cannot be said that the prosecution has succeeded in proving facts for
which a reasonable inference can be drawn that the offence has been
committed by the appellant and the appellant alone. In that view of the
matter, Section 106 of the Evidence Act cannot be invoked to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt.
Failure to comply with the mandate of Rule 131 of the Criminal Rules
of Practice Kerala, 1982.
42. There is yet another matter that troubles us. Under Rule 131 of
the Criminal Rules of Practice, Kerala,1982, in all cases where women are
convicted for the murder of their infant children, a reference is required to be
made through the High Court to the Government with an expression by the
Sessions Judge of his opinion as to the propriety or otherwise of reducing the
sentence. Such reference to be made by the Sessions Judge is to be
accompanied by copies of the material papers of the record.
43. A Full Bench of this Court in State of Kerala v. Salini14 had
[2010(2) KHC 145]
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held that the object behind Rule 131 of the Criminal Rules of Practice,
Kerala,1982, is to alert the Government to consider without delay the exercise
of its powers of remission in the case of a woman convicted of infanticide of
her child/children. Rule 131 of the Criminal Rules of Practice, Kerala, 1982,
framed by this Court mandates the Sessions Judge to alert the Government of
the conviction and sentence with relevant records, so that the Government
may consider without delay, the reduction of sentence invoking its powers to
remit the sentence.
44. In the case on hand, we find from the judgment that the learned
Sessions Judge had failed to comply with the mandate under law.
Our conclusions
45. In view of the discussion above, we hold that the circumstances
from which the conclusion of guilt is to be drawn have not been fully
established against the appellant. Furthermore, the established facts cannot be
said to be consistent only with the hypothesis of her guilt. It cannot be said
that the chain of evidence is complete, as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and in all human
probability the murder must have been done by the accused.
46. Resultantly, this appeal will stand allowed. The finding of guilt,
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conviction and sentence passed against the appellant under Section 302 of the
IPC in S.C.No. 686 of 2015 on the files of the I Additional Sessions Judge,
Palakkad, is set aside and she is acquitted of all charges. The appellant/1st
accused be set at liberty forthwith if her continued incarceration is not required
in any other case.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V. BALAKRISHNAN,
JUDGE
PS/23/03/25
