Ramatha vs State Of Kerala on 25 March, 2025

[Cites 30, Cited by 0]

Kerala High Court

Ramatha vs State Of Kerala on 25 March, 2025

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 2025:KER:25024 Crl. Appeal No. 592/2020 :3: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :4: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :5: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :7: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :9: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :10: 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.

2025:KER:25024 Crl. Appeal No. 592/2020 :11: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :12: 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, 2025:KER:25024 Crl. Appeal No. 592/2020 :13: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :15: 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 1 [(2008) 4 SCC 493] 2025:KER:25024 Crl. Appeal No. 592/2020 :16: 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.


2
       [(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 2025:KER:25024 Crl. Appeal No. 592/2020 :18: 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.

2025:KER:25024 Crl. Appeal No. 592/2020 :19:

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 3 [(1976) 1 SCC 828] 2025:KER:25024 Crl. Appeal No. 592/2020 :20: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :21: 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 4 [AIR 1947 PC 67] 5 [(2000) 6 SCC 269] 6 2002 (7) SCC 728) 2025:KER:25024 Crl. Appeal No. 592/2020 :22:

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] 2025:KER:25024 Crl. Appeal No. 592/2020 :23: (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 8 [2002] Supp SCR 67 2025:KER:25024 Crl. Appeal No. 592/2020 :24: 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 9 [2022 SCC OnLine SC 1396] 10 [2010 CRLJ 338] 2025:KER:25024 Crl. Appeal No. 592/2020 :25: '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 2025:KER:25024 Crl. Appeal No. 592/2020 :27: 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 11 1956 SCC OnLine SC 27 2025:KER:25024 Crl. Appeal No. 592/2020 :29: 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 2025:KER:25024 Crl. Appeal No. 592/2020 :30:

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 13 [(2001) 4 SCC 375] 2025:KER:25024 Crl. Appeal No. 592/2020 :31: 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

14
        [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

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