Shailaja @ Shaila vs State Of Kerala on 25 March, 2025

[Cites 10, Cited by 0]

Kerala High Court

Shailaja @ Shaila vs State Of Kerala on 25 March, 2025

The sole accused in S.C. No.158/2017 on the file of Sessions Court, Thrissur, has preferred this appeal challenging the judgment of conviction and the order of sentence passed against her for the offence punishable under Section 302 of the Indian Penal Code. 2. The facts of the case in brief are as follows:

The deceased in this case was a 4-year-old minor girl named Meba and her maternal grandfather's sister is the accused. The accused was nurturing animosity towards the mother of Meba (CW5) and other family members of CW5 as CW5 and her mother (CW10) stated that it was the accused who had earlier stolen Meba's waistlet when it was lost. Furthermore, the accused believed that it was at the instigation of CW5 and CW10, that the family members of the accused asked her not to visit the family house after the accused was booked in a case registered under the Immoral Traffic (Prevention) Act, 1956. Due to the said animosity towards CW5 and her family members the accused with an intention to kill Meba, the daughter of Crl. A. No.777 of 2020 3 2025:KER:25091 CW5, on 13.10.2016, between 1.30 p.m. and 2 p.m., took Meba to the banks of "Manalipuzha" and then threw Meba into the said river and thereby killed her. Hence the accused is alleged to have committed the offence punishable under Section 302 of IPC. 3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court, Irinjalakuda. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate after complying with all the necessary formalities committed the case to the Court of Session, Thrissur under Section 209 of the Criminal Procedure Code. The learned Sessions Judge took cognizance of the offences and issued process to the accused. After hearing both sides under Section 227 of the Cr.P.C., and perusal of records, the learned Sessions Judge, framed a written charge against the accused for offence punishable under Section 302 of IPC. When the charge was read over and explained to the accused, she pleaded not guilty and claimed to be tried.

4. The prosecution thereupon examined the witnesses on their side as PW1 to PW25 and marked Exts.P1 to P28 documents.

MO1 to MO10 series were the material objects identified by the Crl. A. No.777 of 2020 4 2025:KER:25091 prosecution witnesses and marked in evidence. After completion of prosecution evidence, when the accused was questioned under Section 313 of the Cr.P.C., she denied all the incriminating materials brought out against her in evidence. Since it was not a fit case to acquit the accused under Section 232 of the Cr.P.C., the accused was directed to enter her defence. From the side of the accused two documents were marked as Ext.D1 and D2.

5. After trial, the accused was found guilty of the offence punishable under Section 302 of the IPC and she was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- (Rupees fifty thousand only). In default of payment of fine the accused was sentenced to undergo rigorous imprisonment for two years.

6. The matter involved in this case was brought to light when the body of a minor girl aged 4 years was found lying in a river under suspicious circumstances. The law was set in motion in this case by the father of the minor girl who lodged an FIS before the SHO, Pudukkad Police Station. Originally, the FIR was registered under Section 174 of Cr.P.C. as unnatural death. Thereafter, on the basis of some leads allegedly received from the postmortem Crl. A. No.777 of 2020 5 2025:KER:25091 examination and the witnesses' statements, a report was filed by the investigating officer before the jurisdictional magistrate deleting Section 174 of Cr.P.C. and adding Section 302 of the IPC and arraying the deceased's maternal grandfather's sister as the accused.

7. The father of the deceased minor girl who lodged the FIS was examined as PW1 through video conferencing as he was abroad at the time of his examination. On examination before the court, PW1 deposed in the following lines: The deceased in this case is his daughter and she died on 13.10.2016. On the said day, he as well as his minor daughter were in his wife's house located at a place called Pazhayi. It was for attending the 'sanchayanam' (funeral-related function) of his father-in-law's brother, he went to his wife's house. His father-in-law's brother's house and his wife's house were closely situated and the 'sanchayanam' was performed in his father-in-law's brother's house. After attending the function and having lunch, he along with his wife returned to his wife's house after leaving his daughter Meba in the house where the function was conducted. At that time, his daughter was playing with other children. After a short while, he saw his mother-in-law enquiring about his daughter saying she was missing. Hearing the same, he Crl. A. No.777 of 2020 6 2025:KER:25091 rushed to his wife's paternal uncle's house. Everyone was then in search of his daughter. Thereafter, he rushed towards the banks of the river which was passing on the northern side of his wife's uncle's house. Then his wife's paternal aunt (accused) told him that some natives from Bengal had arrived and they might have taken the child and the accused hence diverted him from the banks of the river. Hearing the same, he rushed near to the road. In the meantime, those who gathered there went in some vehicles in search of the child. After a short while, another paternal uncle of his wife, Sajeevan (PW5) stepped into the river in search of his daughter and took the child from the river. Immediately she was rushed to the hospital. But she was declared dead by the Doctor after examination. Thereafter, the body of his daughter was taken to his wife's house. Then somebody asked him, whether a post-mortem examination should be conducted, but he declined, stating that he did not want to see his child's body dissected. But everybody who gathered there told him that there was no chance for the child to go alone to the riverside, and he also realised the fact that the riverside was full of trees and bushes, so there was no chance for the child to go there. So he decided to complain before the police and he went to Crl. A. No.777 of 2020 7 2025:KER:25091 Pudukkad police station and lodged Ext.P1 FIS. Thereafter, Police came to his house on 15.10.2016 accompanied by the accused. PW1's daughter was wearing a frock and an overcoat at the time of the incident and the said frock and overcoat were identified by PW1 and marked as MO1 and MO2 respectively. According to PW1, the accused who is the paternal aunt of his wife, was on inimical terms with his wife and her family, as when his daughter's golden waistlet was earlier lost, his wife's family members alleged that it was the accused who took the said golden waistlet. Moreover, following the publication of a news item in a newspaper, the accused was arrested by police in connection with immoral activities, and his wife's family members kept a distance from the accused. According to PW1, due to the said animosity towards his wife's family and to put him as well as his wife in sorrow, the accused killed her daughter, by throwing her into the river.

8. When the mother of the deceased Meba was examined as PW2, she deposed that the accused in this case is her paternal aunt. Earlier when the golden waistlet of her child Meba was lost, all her family members believed that it was taken by the accused and hence PW2 as well as her family told their relatives that the waistlet was Crl. A. No.777 of 2020 8 2025:KER:25091 stolen by the accused. Enraged by the same, the accused came to her house and threatened by saying that she would retaliate and would put PW2 in sorrow. While things being so, on 13.10.2016 PW2 attended the 'sanchayanam' of her uncle along with her husband and daughter. After attending the 'sanchayanam' function at around 1.00 pm she gave food to her child. Thereafter, her child Meba told that it was the accused who helped her to wash her mouth and on hearing the same, the mother of PW2 scolded PW2's daughter for the same. According to PW2, thereafter she went to her house along with her husband leaving her daughter in her uncle's house and at that time, her daughter was playing with other children. 10 to 20 minutes thereafter, she heard somebody saying that her daughter is found missing. When her husband went towards the river, the accused deliberately diverted him from the riverside, saying that the child might have been taken away by 'Bengalees' (migrant labourers). After some time, her another paternal uncle Sajeevan(PW5) took the body of her daughter from the river. According to PW2 her daughter Meba was having fear of water, and she would never go near to the river.


         9.    When the cousin sister of PW2 was examined as PW3,
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she deposed that on 13.10.2016 there was a 'sanchayanam' function in her family house. After the function, at about 1.30 p.m. while she was sweeping the kitchen the accused came inside the kitchen wearing a wet nighty. When the accused was asked about the wet nighty, she stated that she had loose stools and had gone to the river to wash up. PW3 identified MO3 as the nighty worn by the accused at the time of the incident. PW3 also deposed about the incidents that led to the enmity of the accused towards PW2 and her family.

10. Another cousin sister of PW2 was examined as PW4. On examination, PW2 deposed that on 13.10.2016 after attending the 'sanchayanam' function while she came out of the house and when she reached near the bathroom situated in the courtyard of her uncle's house, the accused was inside the bathroom. A short while later, the accused came out of the bathroom and the nighty worn by the accused was found wet below the waist portion. Moreover, mud, mosses and leaves were also found on the legs of the accused. When she asked the accused what happened, the accused said that she was menstruating and so went to the river to wash up. The accused was then found in a perplexed mood. PW4 identified MO3 as the nighty worn by the accused at the time of the incident.

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11. PW5 is the brother of the accused, and the paternal uncle of PW2, who took the body of the deceased Meba from the river. He deposed that, on knowing that the child of PW2 was missing, he along with some other persons went near the river ghat, and the water was seen muddy. So, everybody asked him to search in the water, and hence he entered into the river. Then his leg touched something, and so he went down and saw the child lying under the water. He took the child. Immediately thereafter the child was taken to hospital by his brothers, where she was declared dead. He also deposed in similar lines as spoken by other witnesses regarding the motive for the commission of the offence.

12. PW6 is another brother of the accused and paternal uncle of PW2. He also fully supported the sequence of incidents narrated by PWs1 to 5. According to PW6, he was also present at the time of the inquest of Meba, and he stated to the police that the child would never go to the river and hence he has some suspicion about her death.

13. PW12 is the son of PW6 whose statement was recorded by police during further investigation. He deposed that on Crl. A. No.777 of 2020 11 2025:KER:25091 13.10.2016, he performed the rituals of 'sanchayanam' of his paternal uncle as his uncle had no male children. After performing the initial rituals in this paternal uncle's house, he and his close relatives went to Valappad beach, to complete the 'sanchayanam' function by flowing ashes in the sea, and he came back at about 12 noon. After reaching his paternal uncle's house and having lunch, he returned to his house, which is situating near his paternal uncle's house. While going back to his house, he saw the accused, and deceased Meba standing near the bathroom on the northern side of his paternal uncle's house. After some time, hearing that Meba, the minor daughter of PW2 was missing, he came back, and asked the accused about the child, as it was with her the child was seen last seen. Then the accused said that, the child might have been taken by 'Bengalees' (migrant labourers). Then he immediately took his car, and went to railway station along with his cousin brother in search of Meba. Meanwhile, he received a phone call that, the child was found in the river. Knowing that the child was taken to Devikripa hospital, Pudukkad, he also rushed to the hospital, but after examination, the doctor reported that the child is no more.

14. PW13 also is a witness, questioned during further Crl. A. No.777 of 2020 12 2025:KER:25091 investigation. He would say that, on 13.10.2016 at about 1.30 p.m. when he along with one Prathyush reached the house of Mohandas to attend 'sanchayanam', he saw the accused coming from the river ghat, and entering the bathroom situated in the courtyard of Mohandas. At that time, the accused's nighty was found wet below the waist. PW13 identified MO3 as the nighty worn by the accused when he saw her coming from the river ghat. Thereafter, while he was talking with others by standing in front of the house of Mohandas, PW2 rushed there searching for her child. Then all those who were present there joined in the search, and after a short while, somebody said that the child was taken from the river. Immediately the child was rushed to hospital, but later, he came to know that the child was dead.

15. The Station House Officer, Puthukkadu Police Station was examined as PW23. On examination, PW23 deposed that on 13.10.2016 the defacto complainant in this case, who is none other than the father of the deceased minor girl came to the police station and gave Ext.P1 statement. According to PW23 it was on the strength of the said FIS Ext.P16 FIR was registered. PW23 further deposed that the FIR was originally registered under Section 174 of Crl. A. No.777 of 2020 13 2025:KER:25091 the Cr.P.C. as an unnatural death. According to PW23 thereafter he deputed the Additional Sub Inspector of Police (PW22), Pudukkad to conduct an inquest. Thereafter, he visited the place of occurrence and prepared Ext.P2 scene mahazar in the presence of independent witnesses. He interrogated and recorded the statement of witnesses and on the basis of the lead received in the introgration he filed a report before the jurisdictional magistrate adding Section 302 of the IPC and deleting Section 174 of the Cr.P.C. Ext.P17 is the said report. Moreover, PW23 filed a report before the jurisdictional magistrate showing the correct name and address of the accused. Ext.P18 is the said report. According to PW23 thereafter he took the accused into custody and during interrogation, the accused gave a confession statement and in the said statement she disclosed that "ഞാൻ അപ്പോൾ ധരിച്ചിരുന്ന കറുത്ത നൈറ്റി മൂത്ത ചേട്ടൻറെ വീടിനു പുറത്തു ഇട്ടിട്ടുണ്ട്. എന്നെ കൂട്ടിക്കൊണ്ടുപോയാൽ ഞാൻ ആ നൈറ്റി കാണിച്ചുതരാം." The extract of the relevant portion of the confession statement given by the accused and recorded by PW23 is marked as Ext.P19.

16. The Circle Inspector of Police who conducted the major chunk of the investigation in this case and laid the final report was examined as PW24. According to PW24, he took over the Crl. A. No.777 of 2020 14 2025:KER:25091 investigation in this case on 15.10.2016. On knowing that the accused was taken into custody by PW24, he proceeded to Puthukkadu Police Station, and after interrogation, he effected the arrest of the accused. Ext.P20 is the arrest memo and Ext.P21 is the inspection memo prepared by him. Thereafter, he visited the place of occurrence along with a scientific expert. The sample soil as well as the moss collected from the river ghat and handed over to him by the scientific expert were taken into custody after describing in Ext.P6 mahazar. Thereafter, the said items were sent for chemical examination. The accused was then forwarded for medical examination and the Doctor who conducted the medical examination collected the nail clippings of the accused as requested by him and handed over the same to him in a sealed packet. The packet containing nail clippings of the accused which were handed over to him were taken into custody after describing in Ext.P14 mahazar. Thereafter, he verified the disclosure statement given by the accused to PW23 who conducted the initial part of the investigation in this case. According to PW24, on the strength of the said disclosure statement and as led by the accused, he reached the courtyard of a house bearing No.9/296 of Nenmanikkara Grama Panchayat.

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Thereafter, the accused took a nighty and an underskirt from a cloth line tied on the southern side of a bathroom situated outside the said house and handed over the same to PW24. According to PW24, the nighty taken and handed over to him by the accused was taken into custody by him after describing in Ext.P4 seizure mahazar. PW24 identified MO3 as the said nighty and MO6 as the underskirt taken and produced by the accused. Thereafter, PW1, the father of the deceased minor girl produced the dress worn by the deceased minor girl at the time of her death and the same was also taken into custody by PW24 after describing in Ext.P5 seizure mahazar. According to PW24, MO1 is the frock and MO2 is the overcoat so produced by PW1 before him. Thereafter, he interrogated the witnesses including the Doctor who conducted the postmortem examination on the body of the deceased and recorded their statements. The thondi articles recovered in this case were produced before the court after describing in Ext.P23 and P25 property list. According to PW24, Ext.P24 is the forwarding note prepared by him and produced before the court for sending the thondi articles seized in this case for scientific examination. The FSL report received after the examination of thondi articles in this case was marked as Ext.P27 Crl. A. No.777 of 2020 16 2025:KER:25091 through PW24. According to PW24, it was he who submitted the final report before the court after the completion of the investigation. According to PW24 after submission of the final report, it was revealed that further investigation is highly necessary in this case and hence he filed a report before the Sessions Court seeking formal permission to conduct further investigation.

17. The Circle Inspector of Police, Poochakkal Police Station who conducted further investigation in this case and laid a supplementary final report was examined as PW25. According to PW25, as part of the further investigation he recorded the statement of PW12 and PW13 and a supplementary final report was submitted on 02.04.2019.

18. This is admittedly, a case in which there is no direct evidence to prove the occurrence. Instead, the prosecution relies on circumstantial evidence to establish the accused's guilt. Before delving into the details of the circumstantial evidence presented in this case by the prosecution, it is essential to examine the principles and guidelines governing the evaluation of such evidence.




      19.   In   Sarad       Birdhichand      Sarda   v.    State   of
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Maharashtra [AIR 1984 SC 1622] the Hon'ble Apex Court discussed the nature, character, and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;14

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) 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.

20. A similar view has been reiterated by the Apex Court in Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002 SC 3164], State of Uttarpradesh v. Satish [AIR 2005 SC Crl. A. No.777 of 2020 18 2025:KER:25091 1000] and Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].

21. In a case built upon circumstantial evidence a complete and unbroken chain of evidence is a requisite. This chain must inevitably lead to the conclusion that the accused, and none other than the accused, could have committed the offence. In other words, to sustain a conviction, circumstantial evidence must be comprehensive and incapable of explanation of any hypothesis other than the guilt of the accused. Thus, such evidence must not only be consistent with the accused's guilt but also be inconsistent with his innocence.

22. In Kaliram v. State of Himachal Pradesh [(1973) 2 SCC 808] the Hon'ble Supreme Court observed as follows:

"It is important to note that the cardinal principle in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted".

23. Keeping in mind the above principles, the crucial Crl. A. No.777 of 2020 19 2025:KER:25091 question in the case on hand is whether the prosecution has fully and exhaustively established the circumstances relied upon to prove the charge leveled against the accused. Furthermore, it must be ascertained whether these circumstances lead inexorably to the conclusion of the accused's guilt, to the exclusion of any other plausible explanation including innocence.

24. Before determining the question whether the accused is the perpetrator of the alleged crime, it is necessary to decide whether the death of Meba, the 4-year-old minor girl was an accidental one or a homicidal one. From the contentions pressed into service by the learned counsel for the appellant, it is discernible that his attempt is to convince this Court that the death of the minor daughter of PW1 and PW2 is an accidental one. As already mentioned, there is no direct evidence to answer the said issue. However, the circumstances brought out in this case favour the case of the Prosecution that the death of Meba is a homicidal one. The main material that persuades us to enter into such a conclusion is the evidence tendered by the doctor who conducted the autopsy of the deceased.

25. When the doctor who conducted the autopsy was Crl. A. No.777 of 2020 20 2025:KER:25091 examined as PW14, he deposed that on 14.10.2016 while he was working as a Forensic surgeon at Medical College Hospital, Thrissur, he conducted postmortem examination of a 4-year-old female child Meba and issued a postmortem certificate. The postmortem certificate issued by the doctor was marked as Ext. P8. Referring to Ext. P8, the doctor testified that he had noted the following antemortem injuries in the postmortem examination;

1) Abrasion 3х0.5 cm transversely placed on the inner aspect of upper lip across midline.

2) Contusion 0.8х0.5 cm mucosal deep, on the inner aspect of right side of lower lip, its inner extent at midline.

3) Contusion 1х0.8 cm mucosal deep, on the inner aspect of left side of lower lip, its inner extent 0.5cm to left of midline.

4) Curvilinear abrasion 0.8х0.1cm vertically placed with convexity directed medially on the right upper eyelid, its upper end at right eyebrow and 3.5 cm to the right of midline.

5) Linear abrasion 3х0.1cm obliquely placed on the front aspect of right arm its upper outer end 5cm below the Crl. A. No.777 of 2020 21 2025:KER:25091 top of right shoulder, with dark brown adherent scap.

6) Multiple graze abrasions over an area 7х5cm with oblique graze marks on the front aspect of right knee and adjoining right leg with dark brown adherent scap and a lacerated wound 1х0.2cm deep on the lower part of right knee with brown healing non-adherent edges.

26. The doctor opinioned that the death was due to drowning. According to the doctor, injuries No.1 to 4 were fresh injuries and could be caused in an attempt of smothering. He clarified that injury No.4 could be caused by fingernail while attempting smothering. Similarly, in the cross-examination PW14, the doctor asserted that injuries No.1 to 3 could not be caused by coming into contact with the river bed as injuries Nos. 1 to 3 were on the inner aspects of the lips. According to the doctor, as those injuries are on the inner aspects of the lips, the said injuries could not be caused while the child steps into the river. PW14 further opined that the abrasion on the inner aspects of the lip is not possible during drowning. Of course, a conjoint reading of the evidence of PW14, the doctor, and injuries noted in the postmortem certificate issued by him reveals that the death of Meba was a homicidal one.

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27. At this juncture, it is pertinent to note that the evidence of PW1 and PW2, the parents of Meba, shows that after attending 'sanchayanam', both of them returned to PW2's paternal house after leaving their minor daughter in the house were the 'sanchayanam' function was conducted. The evidence of PW1 reveals that when he left the house where the 'sanchayanam' function was conducted, his daughter was found playing with other children. It was thereafter at around 1.30 p.m., their child went missing and a search ensued. Unfortunately, in the search, PW1's daughter's lifeless body was found drowned in the nearby river. On examination before the court, PW1 deposed that the way that leads to the river and the ghat situated close to the river is densely overgrown with bushes and shrubs making it highly improbable that the child would have ventured to go there alone. PW2, the mother of the child also asserted that her daughter would never go to the river alone due to fear of water. The other independent witnesses who are the relatives of PW1 and PW2 also ruled out the possibility of the child going alone to the river. Therefore, the above-discussed evidence when read in conjunction with the evidence adduced by the doctor who conducted postmortem examination leads to an irresistible conclusion that the Crl. A. No.777 of 2020 23 2025:KER:25091 death of Meba is homicidal in nature.

28. Now, the crucial question which remains to be considered is who is the actual perpetrator of the crime. In order to prove that the accused is the perpetrator of this offence, one of the main circumstances relied on by the prosecution is that the accused had a strong motive to commit the murder of the deceased. The motive alleged by the prosecution is that three years prior to the incident in this case, when the gold waistlet of the minor daughter of PW1 and PW2 was found missing PW2 said that it was the accused who had stolen it. Furthermore, the accused believed that it was at the instigation of PW2 and her mother, that the family members of the accused asked her not to visit the family house after the accused was booked in a case registered under the Immoral Traffic Act. Hence, according to the prosecution it was due to the said animosity and to wreak vengeance, the accused murdered the minor daughter of PW2.

29. On examination before court PW1 and PW2 testified about the abovementioned motive and sticks on the stand that the accused was nurturing an animosity towards them. PW2 deposed that she bonafidely believed that it was the accused who had stolen Crl. A. No.777 of 2020 24 2025:KER:25091 her daughter's waistlet and that is why she told the same to her relatives. According to PW2, the accused once threatened that she would retaliate and would put PW2 in sorrow. The testimony of PW3 to PW6 who are the common relatives of the deceased and the accused unequivocally establishes that the accused nurtured animosity towards the family of PW2 subsequent to the theft of the deceased's gold waistlet. Moreover, a conjoint reading of the evidence of PW1 to PW6 establishes the fact that none of the relatives were on good terms with the accused after she was involved in a case registered under the Immoral Traffic Act and some news items with respect to the same was published in a newspaper.

30. Although, the above discussed evidence clearly shows that the deceased was not on good terms with PW1 and PW2, we reasonably doubt whether the same amounts to a strong motive that would have persuaded the accused to commit the murder of a child of tender age. At this juncture, it is pertinent to note that the alleged incident of theft of gold waistlet occurred around three years prior to the incident in this case. Therefore, it is unlikely that the accused would have kept animosity in her mind for such a long period and retaliated by committing an offence of this nature. However, we are Crl. A. No.777 of 2020 25 2025:KER:25091 cognizant that a Court cannot read the mind of the accused to assess the thoughts of the accused and therefore, it could not be said that the accused was not having a motive in absolute times especially when the evidence of PW1 to PW6 shows that the accused was nurturing an animosity towards PW2 and her family. Anyhow, we are of the view that the motive alleged in this case is not a strong one. To be considered as one of the circumstances, the proof motive must be robust. Nonetheless, for the sake of argument, even if it is admitted that the motive for the commission of the offence is proved, the proof of motive alone is not sufficient to enter into a conclusion of guilt against the accused.

31. Another circumstance relied on by the prosecution to prove the involvement of the accused in the commission of the offence is that prior to the detection of the dead body from the river, the accused visited the river. In order to prove that, the accused went to the river prior to finding the dead body of the minor girl, the prosecution is mainly relying on the evidence that PW3 and PW4. The evidence of PW3 reveals that on 13.10.2016 between 1.00 p.m. and 1.30 p.m. while she was sweeping the kitchen the accused came inside the kitchen by wearing a wet black colour nighty and when she Crl. A. No.777 of 2020 26 2025:KER:25091 asked the accused said that she had a loose motion and hence she went to river to wash. When PW4 was examined, she also deposed that on the alleged date of the incident, beween 1.00 p.m. and 1.30 p.m., when she came out of the house to go the bathroom situated in the courtyard of the house and approached the bathroom, the accused was inside it. Thereafter, the accused came out of the bathroom wearing black colour nighty and the portion below the waist of the nighty was found wet. When she asked about the same, the accused said that she went to the river to wash up as she was menstruating. PW4 further deposed that she found mud, moss and leaves on the legs of the accused and the accused was then in a perplexed mood.

32. It was relying on the above discussed evidence of PW3 and PW4 the prosecution contended that the accused went to the river prior to the minor child being found dead drowning inside the river and the same will clearly establish that the accused is the person who committed this offence. However, it is to be noted that even the accused is not having a case that she had not gone to the river at the time alleged by the prosecution. On the other hand, when she was questioned under Section 313 Cr.P.C. she admitted Crl. A. No.777 of 2020 27 2025:KER:25091 that on the alleged date of incident, she had loose stools, and in order to wash up she went to the river. We are of the view that the fact that the accused went to the river on the alleged date of occurrence in and around the time when the incident in which PW1's and PW2's daughter was found dead inside the river alone is not a reason to enter into a conclusion that it was the accused who committed the offence especially when the accused offered a plausible explanation for her visit to the river.

33. Anyhow, the learned Sessions Judge entered into a definite finding that the differing explanation given by the accused for going to the river is fatal as the same will demonstrate that the accused is concealing something. We do agree that when PW3 asked the accused as to why she went to the river, the accused stated that she went to the river to wash up as she had loose motion. However, when PW4 asked what the accused stated was that she went to the river to wash due to menstruation. We do agree that the reasons stated for going to the river are different. Nevertheless, it is crucial to consider that it is entirely possible for the accused to have been experiencing both menstruation and loose motion simultaneously. Therefore, it cannot be conclusively stated that the accused's Crl. A. No.777 of 2020 28 2025:KER:25091 explanations are mutually destructive. The fact that she provided one reason to PW3 and another reason to PW4 does not necessarily imply that she intentionally provided a false explanation. Therefore, it is unreasonable to conclude that the accused had given a false explanation for her visit to the river and the said circumstance relied on by the prosecution is feeble.

34. Another circumstance relied on by the prosecution to prove the guilt of the accused is that while PW1 went near the river in search of his missing child the accused diverted him by saying that the child might have been taken by the migrant labourers who hailed from Bengal. On examination before court, though PW1 testified in that line, the same alone is not a reason to conclude that such doubt was expressed by the accused deliberately to derail the search for the missing child, particularly when none of the witnesses were having a case that migrant labourers were not likely there in the said locality. Therefore, if the accused bonafidely entertained a doubt that the child might have been taken by migrant labourers and on the basis of the said belief, she stated such a possibility, she could not be said to have diverted PW1 from searching the child in the river. Therefore, the abovesaid circumstance is a very fragile one, insufficient to draw Crl. A. No.777 of 2020 29 2025:KER:25091 any inference against the accused.

35. Another circumstance pressed into service from the side of the prosecution is that the deceased child was last seen alive in the company of the accused and therefore, it is for the accused to explain what transpired thereafter. According to the prosecution the accused has to explain either when she parted the company of the deceased or what happened to the deceased girl after she was found in the company of the accused. In order to prove that it was in the company of the accused, the deceased child was last seen alive, the prosecution relies heavily on the evidence of PW12. What PW12 deposed is that on 13.10.2016 he also attended the 'sanchayanam' function arranged in the house of one Mohandas. According to him, after attending the function and having lunch he returned to his house and while going back to his house he saw the accused and the deceased Meba standing near the bathroom situated on the northern side of the house of Mohandas where the function was arranged. Similarly, PW13, another witness testified that on the alleged date of the incident at about 1.30 p.m. when he came to the house of Mohandas to attend the function, he saw the accused coming from the river and entering the bathroom situated on the courtyard of Crl. A. No.777 of 2020 30 2025:KER:25091 Mohandas house.

36. Pertinently, PW12 and PW13 were brought to the array of witnesses by the prosecution after three years of the incident pursuant to a further investigation conducted in this case. We do agree that neither PW12 nor PW13 were cited as a witnesses in the original final report filed in this case. It was after three years of the incident while the trial of the case about to be commenced the investigating officer filed a petition seeking formal permission of the trial judge to conduct further investigation in this case. The said petition was allowed by the Sessions Judge. Accordingly, after further investigation, a supplementary final report was filed before the court citing PW12 and PW13 as witnesses. The said petition seeking formal permission of the Sessions Judge to conduct further investigation is marked in evidence as Ext.P28.

37. Though in Ext.P28 it is stated it is for interrogating and recording the statement of the kids who allegedly saw the accused taking the minor girl after offering candies, further investigation was not done in that line. None of the children who allegedly played with the deceased minor girl were arrayed as witnesses in the supplementary final report. Therefore, the bonafide of the Crl. A. No.777 of 2020 31 2025:KER:25091 investigating officer who conducted the further investigation and his credibility is highly doubtful. We do agree that the investigation is purely the prerogative of the police and the court cannot insist that the investigation should be proceeded in a particular manner.

38. However, as already mentioned PW12 and PW13 were interrogated and cited as witnesses after three years of the incident. This raises a serious suspicion that they might have been introduced intentionally as witnesses to introduce the last seen together theory. This case involved a meticulous investigation spanning several years. Several senior officials including the Superintendent of Police visited the crime scene and monitored the investigation. It is puzzling that PW12 and PW13 were not questioned in the initial investigation and their statements were not recorded. When PW12 was examined, he testified that during the initial stage of the investigation, he disclosed to the Police as well as to his relative that he saw the deceased child and the accused Shylaja standing together. According to him, the said fact was disclosed to the Police when the accused was taken to the place of occurrence as part of the investigation. Then it is highly suspicious what prevented police from recording the statements of PW12 and PW13 at the earliest opportunity without waiting for three Crl. A. No.777 of 2020 32 2025:KER:25091 years to record their statement and to cite him as a witness. Therefore, nobody could be blamed if it is found that further investigation as well as the incorporation of PW12 and Pw13 as witnesses in this case is a tactic adopted by the investigating agency to circumvent the situation of lack of evidence in this case. Therefore, we are of the view that the evidence of PW12 that prior to the incident in this case he saw the deceased child in the company of the accused cannot be believed. Consequently, the last-seen principle pressed into service from the side of the prosecution cannot be sustained as the evidence with regard to the last-seen theory is totally unreliable.

39. The upshot of the above discussion is that, though the prosecution had highlighted and attempted to bring several circumstances to connect the accused with the offence alleged in this case, none of the circumstances stand fully and convincingly established. It cannot be said that the circumstances brought out in this case are consistent only with the hypothesis of the guilt of the accused and inconsistent with her innocence. It is trite that a suspicion however strong is not proof or a substitute for proof. Therefore, we hold that the accused is entitled to get the benefit of Crl. A. No.777 of 2020 33 2025:KER:25091 doubt.

In the result, the appeal is allowed. The judgment of conviction and order of sentence passed against the appellant in S.C.No. 158/2017 on the file of Sessions Court, Thrissur is set aside.

Sd/-

                                    P.B. SURESH KUMAR
                                            JUDGE
                                


                                         Sd/-
                                       JOBIN SEBASTIAN
                                                 JUDGE
ncd/ANS

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