Madras High Court
Sakunthala vs The State Rep. By on 31 March, 2004
Crl.A.(MD) No.460 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 11.08.2021 Delivered on : 18.08.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.A (MD)No.460 of 2008
Sakunthala .. Appellant/Sole Accused
-vs-
The State rep. by
The Inspector of Police,
Thathaiyangarpettai Police Station,
Trichy District.
(Crime No.401 of 2002). .. Respondent/Complainant
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure against the judgment of the learned Sessions Judge,
Thiruchirappalli, in S.C.No.220 of 2003, dated 31.03.2004.
For Appellant :: Mr.Thomas Franklin Caesar
for Mr.S.Sethu Mahendran
For Respondent :: Mr.S.Ravi
Standing Counsel for State
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Crl.A.(MD) No.460 of 2008
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.) The appellant, a sole accused, in S.C.No.220 of 2003, on the file of the learned Sessions Judge, Tiruchirappalli, stood charged and convicted for the offence under Section 302 I.P.C. and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo six months Rigorous Imprisonment. Challenging the aforesaid conviction and sentence, the appellant is before this Court with this Criminal Appeal.
2.The case of the prosecution in brief as follows:
The deceased Priya @ Ruba, one year and three month old child, is the daughter of the appellant/accused. P.W.1 is the husband of the appellant/accused, and they are also having two other female children.
P.W.1 was working as a driver and there were frequent quarrel between him and the appellant/accused. On 14.09.2002, there was a quarrel between the husband and wife, due to that, the appellant left P.W.1’s house along with the deceased child. On the next day, i.e., on 15.09.2002, P.W.1 was informed that a child was floating in a well belongs to P.W.4.2/34
https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 P.W.1 went there and found that it is his child. Immediately, he informed the same to the appellant’s parental house at Pillayarpalayam, but nobody came there and the appellant also absconded. Thereafter, P.W.1 has given a complaint before the respondent police at about 11.00 a.m. on 15.09.2002.
3.Based on that complaint, a F.I.R. has been registered by P.W.10, Sub Inspector of Police in Crime No.401 of 2002 under Section 174 Cr.P.C. and he has prepared the First Information Report (Ex.P.7), sent the same to the Judicial Magistrate at 11.30 a.m. He recovered the body of the deceased child and conducted inquest in the presence of Panchayatars, prepared Inquest Report (Ex.P.8) in the presence of P.W.7 and he has also prepared Observation Mahazar (Ex.P.2) and Rough Sketch (Ex.P.9). Then, he sent the body of the child for autopsy with a requisition (Ex.P.3) through P.W.11, a Head Constable, to Government Hospital at Thuraiyur.
4.P.W.9 is a Doctor, working at Government Hospital at Thuraiyur. He conducted autopsy and prepared postmortem report (Ex.P.6). He gave 3/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 his opinion that, the deceased would have died 16 to 20 hours prior to the autopsy and the deceased appeared to have died of asphyxia.
5.Subsequently, on 25.09.2002, the appellant appeared before P.W.12, Inspector of Police, and gave a confession, admitting her guilt. After recording her confession, P.W.12, altered the offence under Section 302 I.P.C. and prepared Express Report (Ex.P.11) and sent the same to the concerned Judicial Magistrate and also higher officials. P.W.12 arrested the appellant and remanded her to judicial custody. Then, he examined P.Ws.1 to 3 and 8 and recorded their statements, thereafter, handed over the investigation to P.W.13 and he continued the investigation and recorded the statements of other witnesses and after completing the investigation, he filed the final report on 21.04.2003.
6.Considering the above materials, the trial Court framed charges for offence under Section 302 I.P.C. and the accused denied the same as false. In order to prove its case, the prosecution examined as many as 13 witnesses, marked 12 documents and also produced 6 material objects. 4/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008
7.Out of the witnesses examined, P.W.1 is the husband of the appellant and father of the deceased. According to him, there was a quarrel between him and the appellant on 14.09.2002, and hence, the appellant left for parental house along with the deceased child. P.W.2 tried to pacify her, despite that, she left the matrimonial home. Thereafter, P.Ws.1 and 2 and others went to her parental house and brought her back. On the next day, on 15.09.2002, P.W.1 got an information that a child was floating in the well belongs to P.W.4 and he identified it as his third daughter Priya. Despite intimation given to appellant’s parents house, none of them came to the P.W.1’s village and the appellant also did not come. Thereafter, he appeared before the respondent police and gave a complaint, which was registered as Ex.P.1. He further stated that there was frequent quarrel between him and the appellant and out of frustration, the appellant thrown the child in the well and caused her death.
8.P.W.2 is closely related to P.W.1 and he has acted as a Mediator between P.W.1 and the appellant. He speaks about the quarrel between them on 14.09.2002 and due to the same, the accused along with 5/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 deceased child went to her parental house. On the next day, P.W.2 came to know that the child was found floating in the well. P.W.3 also belongs to the same village. According to him, on 14.09.2002, at 1.00 p.m., he saw the accused carrying the child and on the next day morning, he was told that the child was found floating in the well. He was treated as a hostile witness. P.W.4 is the owner of the well, according to him, on 14.09.2002 at 5.30 p.m., he found a child was floating in his well and he informed the same to the village headman. He was also treated as hostile witness. P.W.5, the father of P.W.1, also spoke about the frequent quarrel between P.W.1 and the accused and he also stated that on 14.09.2002, the accused left the matrimonial house along with the child. P.W.6 is the Village Panchayat President, he also spoke about the frequent quarrel between P.W.1 and the accused and the mediation conducted by him. He has also stated that on 14.09.2002, due to quarrel between them, the accused took the child and left the matrimonial house. P.W.7 is the witness to the Observation Mahazar. P.W.8 is the witness to the confession statement given by the accused before, P.W.12. 6/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008
9.P.W.9, a Government Doctor working at Thuraiyur Government Hospital, conducted postmortem autopsy and issued postmortem certificate (Ex.P.6) , which reads as follows:
“The body was first seen by the undersigned at 4.30 PM on 15.9.02. Its condition then was Body of female child lying on its back on Mortuary. Post-
mortem commenced at 4.30 PM on 15.9.02. No decomposition. Appearances found at the post-mortem. Rigor mortis passed off in all four limbs.
Ext. Appearance:
1.Eyed closed.
2.Frothy bloody discharge from both nostril.
3.Tongue in mouth.
No external Injuries.
Internal Examination:
1.Hyoid Bone-Intact.
2.Larynx and Pharynx empty.
3.Lungs dry and congested both sides.
4.Heart mildly congested.
5.Abdomen- a) Stomach contend 100ml (nc) digested food particles.
b) Small Intestine empty
c) liver and kidney mild congestion.
6.Skull-Brain mild congestion 7/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 Stomach, intestine liver and kidney sent for Chemical analysis.
Hyoid bone sent for Forensic analysis.
Opinion as to cause of death:-
The deceased would have died 16-20hrs prior to autopsy.
(a) Reserved pending report of Chemical and forensic analysis.
(b) The deceased would appear to have died of Asphyxia.” He was of the opinion that the deceased would have died 16 to 20 hours prior to autopsy, due to asphyxia.
10.P.W.10 is the Sub-Inspector of Police, who registered the F.I.R. under Section 174 Cr.P.C., and handed over the investigation to P.W.12. P.W.11 is the Head Constable, who handed over the body of the deceased to the Government Hospital for conducting autopsy. P.W.12 is the Inspector of Police, who has conducted the investigation. On the basis of the confession given by the appellant/accused, he altered the offence into Section 302 I.P.C. and examined some of the witnesses and thereafter, handed over the investigation to P.W.13 and he continued the 8/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 investigation and after examining the remaining witnesses and on completion of investigation filed the final report.
11.The above incriminating materials were put to the accused under Section 313 Cr.P.C.. The accused denied the same stating that while leaving the matrimonial house she has left the child in the matrimonial house. She has also filed a written statement stating that, there were frequent quarrel between the husband and wife and P.W.1 used to drive the appellant out of the matrimonial house frequently, and after mediation she was taken back. On 14.09.2002, the deceased child developed diarrhea and she requested P.W.1 for money to give treatment to the child. However, P.W.1 refused, hence there was a quarrel between them, and out of frustration, she has given the child to P.W.1, and left the house at 10.00 a.m. as she was not feeling comfortable to go to her parental home, she has gone to Thiruchengode and worked in a power loom. Thereafter, on 24.09.2002, the Inspector of Police, came there and took her to Police Station, only there, she was informed that the child was dead and a false case has been foisted against her as if she has thrown the child into the well. P.W.1 along with other villagers hatched conspiracy and implicated her in the crime.
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12.Having considered the above materials, the trial Court convicted the appellant/accused under Section 302 I.P.C. and sentenced her as state above. Challenging the aforesaid conviction and sentence, the appellant is before this Court with this Criminal Appeal.
13.Mr.Thomas Franklin Caesar, learned counsel appearing for the appellant submitted that, it is a case of circumstantial evidence and the prosecution has miserably failed to establish the circumstances, which would conclusively prove the guilt of the accused. The circumstances relied upon by the prosecution are not complete and conclusively show that in all human probability, the alleged homicide has been done by the appellant.
14.The learned counsel further submitted that, absolutely there is no motive for the accused, mother of the deceased, to throw her child into the well and cause her death. In the absence of clear motive, which is one important circumstances to prove the guilty of the accused, the trial Court erroneously convicted the appellant. He would further add that there are lot of contradictions in the evidence of P.Ws.1 and 2. The 10/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 medical evidence is also not corroborating the prosecution case. The evidence of P.W.9, postmortem doctor along with postmortem report (Ex.P.6) clearly shows that, the death was not due to drowning and the child was thrown into the well after death. That apart, there are lot of contradictions between the evidence of P.Ws.1 to 6. P.W.1, husband of the accused has clearly stated that after the accused left the matrimonial home, there was mediation on 14.09.2002 and on the same day, P.W.1 has brought her back to the matrimonial house. But according to P.Ws.2, 5 and 6, the accused left the house on 14.09.2002 and on the next day they saw the child floating in the well.
15.Learned counsel for the appellant further submitted that there are lot of contradictions regarding the time of death. According to P.W.2, the accused left the house on 14.09.2002 at 4.00 p.m.. However, P.W.3 says he saw the accused along with the child at 1.00 p.m. on that day. As per postmortem report, the death had occurred 14 to 20 hours prior to the occurrence, which may be around 10.30 p.m. on 14.09.2002. Hence, it is highly improbable to say that after she left the house at 4.00 p.m., thrown the baby into the well at about 10.30 p.m. 11/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008
16.The learned counsel very much relied on the postmortem report and submitted that there is no water found in the lungs, stomach and intestine and hence, it cannot be a case of death by drowning. Hence, the very basis of the prosecution case should fall based on the medical evidence. Finally, the learned counsel submitted that the trial Court without considering the above circumstances, relying upon the evidence of P.Ws.1 to 4, out of which P.Ws.3 and 4 turned hostile, convicted the accused. In support of his submission, learned counsel cited a number of decisions, which will be referred to in the later part of the judgment.
17.The learned counsel further finally submitted that earlier, this Court dismissed the Criminal Appeal for non-prosecution and challenging the same, the appellant filed Special Leave Petition (Criminal) before the Hon'ble Supreme Court and the order of this Court has been set aside and the matter was remanded to this Court for disposal of the appeal on merits and considering the fact that the appellant had been in jail for 11 years, granted her bail. Now the appellant is infected with H.I.V. and is taking treatment.
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18.Opposing the same, Mr.S.Ravi learned Standing Counsel for State would submit that admittedly, there were frequent quarrel between the accused and P.W.1 and the accused left the matrimonial house along with the child. P.W.3, who belongs to the same village, saw the accused near the well. Even though, he was treated as hostile, his evidence to that extent can be accepted. P.W.4, the owner of the well, on 14.09.2002, at 5.30 p.m., saw a child floating in the well and informed the same to P.W. 1 on the next day morning and P.W.1 has given the complaint and a case was registered under Section 174 Cr.P.C. Even though the same was informed to the appellant and her parents, they did not come to P.W.1’s village to see the body, but the accused was absconding thereafter, it is one of the strong circumstances against the accused. That apart, P.Ws.2, 5 and 6 also clearly stated that the accused left P.W.1’s house along with the child. Since the child was found in the custody of the accused soon before the occurrence, under Section 106 of the Evidence Act, the burden lies on the accused to explain as to how the child was found dead in the well. In the absence of any plausible explanation, it is another circumstance against her.
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19.According to the learned Standing Counsel for State, yet another strong circumstances against the accused is that the medical evidence, the postmortem report clearly shows that child died of asphyxia and the lungs, liver and kidneys were congested, froth discharged from both the nostrils and the postmortem doctor P.W.9 also was of the opinion that she died of asphyxia due to drowning. All the circumstances, unerringly pointing the guilt on the accused, the trial Court rightly convicted the accused and there is no reason to interfere with the well considered judgment of the trial Court.
20.We have considered the rival submissions and also perused the records carefully.
21.The deceased Priya, one year and three months old child, is the third daughter of accused and P.W.1 and she was found dead and floating in a well belonging to P.W.4. According to prosecution, due to frequent quarrel between the appellant and P.W.1, out of frustration the accused thrown the child into well and caused her death. Even though P.W.3 said to be eyewitness to the said occurrence, said to have seen the accused throwing the child into the well, turned hostile. 14/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008
22.The prosecution relied upon various circumstances to prove the guilt of the accused. The first circumstance relied upon by the prosecution is that, on 14.09.2002, there was quarrel between the accused and P.W.1 and she left the matrimonial house along with her child. P.Ws. 1, 2, 5 and 6 have consistently stated that the accused left the house along with the child and P.W.3, another villager is said to have seen the accused along with the child at 1.00 p.m. However, he was treated as hostile. According to P.W.1, in his chief examination, after the accused left the house there was a mediation by P.W.2 and others. Thereafter, she returned to the matrimonial house, but that evidence was not supported by P.W.2 and according to him, she left the house at 4.00 p.m. P.Ws.5 and 6 also did not support P.W.1 and hence, there is a material contradiction between the witnesses in that aspect.
23.The accused during the questioning under Section 313 Cr.P.C., has filed a written submission stating that on 14.09.2002, the deceased child developed diarrhea and she requested P.W.1 to give money to take her to hospital, but he refused and hence, there was quarrel between the accused, P.W.1 and out of frustration, she handed over the child to P.W.1 15/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 and left the house and gone to Thiruchengode. Even assuming that the accused took the deceased child along with her, that could be one of the circumstances against the accused, but that circumstance alone is not sufficient to prove the guilt of the accused and it will not lead to the conclusion that the accused has caused the death of the child.
24.The next important aspect is the medical evidence. It is the case of the prosecution that due to the quarrel with her husband, out of frustration, the accused has thrown the child into the well and the child died of asphyxia due to drowning. P.W.9 is the doctor, who conducted autopsy on the child and issued postmortem report (Ex.P.6). On a perusal of Ex.P.6, postmortem certificate, it could be seen that the lungs are dry and congested, stomach only contained 100ml digested food particles, and small intestine is empty and the larynx and pharynx are empty and no water in the stomach. Normally, in a case of death by drowning, as per the “Medical Jurisprudence and Toxicology” by Modi, the following characters will present:
“After excluding these possibilities, an opinion as to the cause of death from drowning should be given from several of the following characteristic signs:16/34
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(a) The presence of profuse fine, white, lathery persistent froth around the mount and the nostrils; this is a vital phenomenon and not an evidence of putrefation;
(b) the presence of some object firmly grasped in the hands;
(c) The presence of fine, white froth in the air- passages;
(d) The bulky and oedematous water logged lungs, which exude a copious, frothy, bloodstained fluid on section;
(e) The presence of water, mud or weeds in the stomach or small intestine or both;” It is further stated that in case of submersion after death, it is almost impossible for the water to get into the stomach. It is also further stated therein as follows:
“The presence in the stomach of a certain quantity of water is regarded as an important sign of death, particularly if the water possesses the same characteristics as that in which the body was found immersed, and contains sand, mud, algae, weeds and fine shells. It is almost impossible for water to get into the stomach, if a body is submerged after death. In rare cases, it is possible that the water found in the stomach may have been drunk by the deceased immediately 17/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 before submersion occurred. On the other hand, water may not be present in the stomach, if the person died from sudden cardiac arrest, or became unconscious immediately after falling into water, so that he could not struggle and swallow water in the act of drowning. There will also be no water in the stomach, if the body has undergone putrefaction, for water, even if it is present in the stomach, is forced out by the pressure of the gases of decomposition.
The small intestine, especially the duodenum and jejunum and rarely the ileum, contains water mixed with mud and sand. This sign is regarded as the positive evidence of death by drowning, as the passage of water into the intestine is only due to the peristalic movement, which is a vital act. The internal organs are generally congested.”
25.The Hon'ble Supreme Court while considering case of death by drowning has held that, the absence of the water in the stomach and no froth coming out of the mouth will exclude possibility of drowning. In K.P. Rao v. Public Prosecutor, A.P. [(1975) 2 SCC 570], the Hon'ble Supreme Court held as follows:
“26.Another important circumstance which 18/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 militates against the suggestion of the death of Kalarani from drowning is that when the dead-body was first seen at 9 P.M., its stomach was not in a bloated condition, for was any froth seen coming out of the mouth of the corpse. The fact was vouched by PW 23, a fisherman, who was rightly found worthy of credence by the High Court. It may be added that contrary to what PW 23 has testified A-2 has in the inquest report said that the stomach was bloated with water and froth was coming out of the mouth. But as shall be presently discussed, these notes regarding the condition of the deadbody were invented by A2 to support his false report that the deceased had committed suicide and her death was from drowning. Medical jurisprudence tells us that in a case of death from drowning, the stomach is ordinarily found bloated with air and water which is instinctively swallowed by the drowning person during the struggle for life (see Taylor's Medical Jurisprudence, 12th Edn. Vol. I pp. 374-375).
27.The facts that the stomach was not filled with water and bloated and no froth was coming out of the mouth of the deceased, are important symptoms which go a long way to exclude the possibility of death being as a result of suicide by drowning.” 19/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008
26.In the instant case, the postmortem autopsy would reveal that there is no water in the stomach, lungs and in the intestine, and no froth was coming out of the mouth. P.W.9, in his cross-examination, has stated that if the body is thrown into the water after death, water will not enter into the lungs, stomach and intestine. It is further stated that if the child is kept in a smoky house, there is possibility of death due to asphyxia, which is called slow asphyxia.
27.Considering the above circumstance, we cannot conclusively come to the conclusion that the death was due to drowning and there was a possibility that the child might have been thrown into the well after death, and very charge against the accused that, the accused thrown the child into the well and caused her death, was not proved beyond any reasonable doubt by the prosecution.
28.The third important circumstance is motive. Motive is one of the important circumstance in the cases of circumstantial evidence. The accused is the mother of the one year and three months old child. The mother will not kill her own child, without any strong motive. According 20/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 to prosecution, due to some quarrel between the husband and wife, appellant thrown the child into the well, this is very trivial and the motive set up by the prosecution is not sufficient to sustain the charge. Motive is one of the vital link in the chain of circumstantial evidence and in the absence of any strong motive for the accused to kill her own child, that link is missing in this case.
29.The Hon'ble Supreme Court in Suresh v. State of Haryana [(2018) 18 SCC 654], held as follows:
“43.We need to consider five aspects and their impact on the case at hand, before we put forth our analysis. It is well settled that motive is an important aspect in circumstantial evidence case. In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55 “In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial 21/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye witness is rendered untrustworthy”.
30.The next circumstance relined upon by the prosecution is that after the occurrence, the accused was absconding for more than ten days and only on 25.09.2002, she had appeared before the respondent police and gave confession admitting her guilt. For which, the accused had given explanation that, after leaving the house, she went to Thiruchengode and she was working in power loom, therefore, she was not aware of the fact that the child was dead and only after the police took her to the police station on 25.09.2002, she came to know about the same.
31.Even assuming that the accused is absconding, that itself will not establish the guilt of the accused. The Hon'ble Supreme Court in a 22/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 number of cases held that mere absconding need not necessarily lead to a conclusion of guilty mind and it cannot be held to determine the link of circumstantial evidence, it should be taken as a minor item of evidence for sustaining conviction. The Hon'ble Supreme Court in Sujit Biswas v. State of Assam [(2013) 12 SCC 406], held as follows:
“22. Whether the abscondence of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kumar Mondal v. State of West Bengal, [(2010) 12 SCC 91], wherein the Court observed:
(SCC pp. 98-99, paras 27-28) “27. In Matru alias Girish Chandra v. State of U.P., [(1971) 2 SCC 75], this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under: (SCC p. 84, para 19) ‘19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence 23/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.’ * * *
28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself 24/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 is not conclusive either of guilt or of guilty conscience.” While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru (supra); and State of M.P. v. Paltan Mallah [(2005) 3 SCC 75).
23. Thus, in a case of this nature, the mere abscondance of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondance is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See: Paramjeet Singh v. State of Uttarakhand, [(2010) 10 SCC 439]; and Sk. Yusuf v. State of West Bengal, [(2011) 11 SCC 754].”
32.However, in this case, there is an explanation by the accused that after leaving the house she has gone to Thiruchengode and she was working in a power loom and only after commencing the investigation by the respondent police, she was brought to police station and then only she came to know about the death of the child.
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33.It is submitted by learned Standing Counsel for the State, that the baby is one year and three months old and the accused being the mother, there is no occasion for her to leave the child alone and the burden is on her to prove how the child was dead, and Section 106 of the Indian Evidence Act would operate against the accused. It may be a strong circumstance against the accused, but by that alone, in the absence of any other evidence, cannot be held to be conclusive and by which, this Court can found her guilty. It is settled that, it is the duty of the prosecution to prove the case beyond reasonable doubt and only if the prosecution let in evidence, which prima-facie made out a case against the accused, then the burden of proof would lie on the accused, the primary burden is on the prosecution to prove its case beyond any reasonable doubt.
34.The Hon'ble Supreme Court in Shivaji Chintoppa Patil v. State of Maharashtra [2021 (3) SCALE 384], held as follows:
“19. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In the case of Subramaniam v. State of Tamil Nadu and Another 26/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 [(2009) 14 SCC 415], this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court:-
“23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.”
20. In the case of Subramaniam (supra), reliance was placed on behalf of the State on the judgments of this Court in Trimukh Maroti Kirkan v. State of Maharashtra, [(2006) 10 SCC 681] and Ponnusamy v.
State of Tamil Nadu [(2008) 5 SCC 587]. This Court observed thus:-
27/34
https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 “26. In both the aforementioned cases, the death occurred due to violence. In this case, there was no mark of violence. The appellant has been found to be wholly innocent. So far as the charges under Section 498-A or Section 4 of the Dowry Prohibition Act is concerned, the evidence of the parents of the deceased being PW 1 and PW 2 as also the mediators, PWs 4 and 5 have been disbelieved by both the courts below. That part of the prosecution story suggesting strong motive on the part of the appellant to commit the murder, thus, has been ruled out……”
21. It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):-
“33.1. Insofar as the “last seen theory” is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free 28/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar, [(1974) 4 SCC 193] in the following: (SCC p. 197, para 10) “10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.””
22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased.
Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, 29/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.”
35.It is settled position of law that in a case based on the circumstantial evidence, the circumstances from which the conclusive guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused, and it should exclude every possible hypothesis except one to be proved, and the chain of evidence must be complete so as to not leave any reasonable ground for the conclusion consistent with the innocence of the accused person.
36.The Hon’ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] held as follows:
“153.(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other 30/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
37.In a case of circumstantial evidence, the Court may infer from available evidence, which may lead to prove the guilt of the accused. The Courts have to identify the facts in the first place so as to fit the case within the parameters of “Chain link theory” and then find out the fact of the case and to see that there is a chain of events, which unerringly proving the guilty of the accused beyond reasonable doubt.
38.The Hon'ble Supreme Court in Suresh v. State of Haryana [(2018) 18 SCC 654], held as follows:
“42.Circumstantial evidence are those facts, which the court may infer further. There is a stark 31/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the Courts are called upon to make inferences from the available evidence, which may lead to the accused’s guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of ‘chain link theory’ and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the ‘chain link theory’ since Hanumant v. State of M.P. [AIR 1952 SC 343], which of course needs to be followed herein also.” In the instant case, as stated earlier, the prosecution has failed to prove that the death is homicidal and failed to discharge its initial burden of proof beyond reasonable doubt, hence, Section 106 of the Indian Evidence Act will not operate against the accused.
39.Considering the above circumstances, we are of the considered view that the prosecution has miserably failed to prove the chain of circumstances, unerringly pointing the guilt of the accused and the 32/34 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD) No.460 of 2008 prosecution even failed to prove any single incriminating circumstance against the accused beyond reasonable doubt and made its case based on mere suspicion, without any strong evidence. The Court below without considering the same, simply relying on the evidence of P.Ws.1 to 4 has come to the conclusion that the accused has committed murder and convicted the accused. Hence, the conviction and sentence imposed by the trial Court is liable to be set aside and the appellant is entitled for acquittal.
40.In the result, Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused, by the Sessions Judge, Tiruchirappalli Division, Tiruchirappalli, in S.C.No.220 of 2003, by the judgment dated 31.03.2004, are hereby set aside. The appellant/accused is acquitted of the charge levelled against her. Fine amount, if any, paid by the appellant/accused shall be refunded to her. Bail bonds executed by her also shall stand cancelled.
(V.B.D.J.,) (J.N.B.,J)
18.08.2021
Internet: yes/no
Index : yes/no
sj
33/34
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.460 of 2008
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
sj
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1. The Sessions Judge, Tiruchirappalli Division, Tiruchirappalli.
2. The Inspector of Police, Thathaiyangarpettai Police Station, Trichy District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Copy to The Section Officer, Criminal Records, Madurai Bench of Madras High Court, Madurai.
Judgment in Criminal Appeal No.(MD) No.460 of 2008 Delivered on 18.08.2021 34/34 https://www.mhc.tn.gov.in/judis/