IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 CRL.A.No. 977 of 2005 -------------------------- SC.428/2002 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... APPELLANT/ACCUSED: ------------------------ VILASINI, 43 YEARS OLD, D/O.GOVINDAN, KUTTIORAKANDY HOUSE, AVIDANALLUR AMSOM, POONATH DESOM, KANNADIPOYIL. BY ADV. SRI.K.N.SASEENDRAN SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT/COMPLAINANT: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. S.I. OF POLICE, BALUSSERY, KOZHIKODE. BY PUBLIC PROSECUTOR SRI.NOBLE M ATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 977 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009. Judgment Basheer, J: Appellant, a middle aged woman, was tried before the court below on a charge of infanticide. The gravamen of the charge against her was that she had murdered her three day old female baby and buried the dead body inside the kitchen of her house. The court below, relying on the evidence adduced by the prosecution, found her guilty under Section 302 Indian Penal Code and convicted and sentenced her to undergo imprisonment for life and to pay fine of Rs.5,000/- with a default sentence of rigorous imprisonment for 6 months. The said order of conviction and sentence is impugned in this appeal. 2. Pw.1 to Pw. 15 were examined and Exts.P1 to P14 and M.Os.1 to 5 were marked on the side of the prosecution. There was no oral or documentary evidence on the side of the defence. 3. Pw.1 who was stated to be the neighbour of the accused deposed before the court that the accused and her husband Vinod had been living together along with their 12 year old son Anishad. She stated that the incident in this case took place about 2 to 3 years ago. She could not remember the exact date and month of the incident. She never knew that the accused was pregnant. But she came to know that accused had delivered a baby at Balusserry Govt. hospital. However the exact date of birth she could not remember. She had gone to the residence of the accused after the delivery. She never knew what had happened to the baby thereafter. This witness was declared hostile since according to the prosecution she had resiled from her statement given before the Police. She disowned her alleged statement before the Police to the effect that on the next day when she went to the residence of the accused she could not see the baby there Crl.A.977/2005. : 2 : and that when she questioned the accused, she started weeping. But before the court she deposed that she had no suspicion that the baby was born in an illicit relationship. She also stated that she had no suspicion that the baby was murdered by the accused and buried inside the house. The relevant portion of her statement given to the Police was marked as Ext.P1. In cross examination this witness stated that she had seen Vinod going through the lane in front of the house of the accused on the day of the incident. 4. Pw.2 was the Civil Surgeon attached to the Community Health Centre at Balusserry. He stated that he had examined the accused on September 4, 2001. She was admitted in the hospital with labour pain on that day. Accused delivered a child on that day and she was discharged on the next day. Pw.3 was the Nursing Superintendent attached to the Health Centre at Balusserry. She had produced the Inpatient register maintained at the hospital before the Police on November 7, 2001. She was an attestor to Ext.P2 mahazar prepared by Pw.13 for seizure of Inpatient register. It was returned to Pw.3 since it was a current register being maintained in the hospital. 5. Pw.4 had given Ext.P4 First Information statement before Pw.14 Sub Inspector. Ext.P4(a) First Information Report was registered by the said officer on the same day. Pw.5 was a neighbour of the accused. She saw the accused going to the hospital; but she could not remember the year. It was approximately 3 years ago. She had visited the accused and the baby at the hospital. She had also gone to the residence of the accused after discharge from the hospital and seen the baby. Thereafter she had not seen the baby. She came to now that the child was taken to the hospital due to some breathing problem. This witness was also declared hostile. She disowned her version given before the Police to the effect that the accused had Crl.A.977/2005. : 3 : murdered and buried the child inside the house. She had also not told the Police that the baby was born in an illicit relationship. Pw.6 also did no support the prosecution case. He stated that he had not seen the Police holding the inquest. He also disowned Ext.P5 statement allegedly given by him before the Police. Pw.7 was an attestor to Ext.P16 mahazar. Pw.8 conducted post mortem and issued Ext.P8 post mortem certificate. In this certificate the doctor gave the information that post mortem findings were consistent with history of death due to asphyxia. There was also evidence of head injury. Pw.9 stated that the accused was examined by him in the hospital on September 11, 2001 on a requisition issued by the Investigating Officer. Ext.P8 certificate revealed that the doctor who examined the accused had stated that the accused had delivered a baby on September 4, 2000 at 1 p.m. as could be seen from the Ext.P9 entry in the Parturition register. Pw.10-conducted inquest and prepared Ext.P10 inquest report. Pw.11 was a witness to seizure of Inpatient Register under Ext.P2 mahazar. Pw.12 photographer took Ext.P11 to P11(g) photographs. Ext.P12 to P12(g) were the negatives. Pw.13 prepared Ext.P13 scene plan. Pw.14 had recorded Ext.P4 F.I statement and registered Ext.P4(a) First Information Report. 6. Pw.15 conducted the investigation. According to this witness he had taken over investigation on September 8, 2001 and prepared Ext.P6 scene mahazar and seized M.O.1 to M.O.5, white cloth, pillow, shirt and pieces of clothes respectively. Ext.P14 report of the Chemical Examiner was marked through this witness. The report revealed that the cloth, shirt and two cloth pieces sent for examination contained thick and thin brown stains which were found to be human blood. 7. As has been noticed already, Pw.4 had set the law in motion by Crl.A.977/2005. : 4 : giving Ext.P4 First Information Statement. It is revealed from Ext.P4 that the statement was recorded by Pw.14 at 9 p.m. on September 7, 2001. In Ext.P4 it was stated by Pw.4 that she had heard her neighbour saying that the accused had murdered the baby and buried it. One Sura, an immediate neighbour of the accused told him that the baby had been murdered by the accused and the body buried inside the house. Pw.15 stated before the Court that he had taken over the investigation on the next day viz., September 8, 2001 itself. But according to Pw.15 though he had taken the accused into custody and kept her under surveillance in the Police Station on 8th itself, her statement was recorded only on September 11, 2001. 8. It is further revealed from the evidence on record that the dead body was exhumed from the kitchen of the house only on September 15, 2001. According to Pw.15 he had located the place of burial on the basis of the information furnished by the accused, but curiously there is nothing on record in this connection. The alleged statement, if any, made by the accused leading to the recovery is conspicuously absent. In short, there is nothing to connect the accused with the so called recovery of the dead body. 9. In this context we may refer to the statement given by the accused when she was questioned under Section 313 Cr.P.C. The specific case of the accused was that on the alleged day of incident, her husband had come to the house when she had gone to a nearby stream to take bath. The baby was kept in the care and custody of her husband Vinod. But when she came back neither the baby nor her husband was seen in the house. She had told this to her elder son Anishad when he came back from the school. She did not however divulge this information to anyone else. We have referred to these aspects only to highlight the fact that there is a possibility of someone Crl.A.977/2005. : 5 : else other than the accused herself being responsible for the homicide. In the absence of any direct evidence or at least some circumstance which clinchingly would show that it was the accused and no one else who was responsible for the murder, it may not be safe for this Court to hold the appellant guilty of the charge levelled against her. 10. There are various other circumstances which persuade us to give the benefit of doubt to the accused. It is no doubt true that the evidence on record would clearly indicate that the accused had delivered a female baby on September 4, 2001 at the Health Centre of Balusserry. It cannot also be disputed that the said female baby was found buried inside the kitchen of the house of the accused. Though there may be strong circumstance indicating that the accused might have been responsible for the homicide, it may not be just or proper to come to such a conclusion on the basis of assumptions. In a case which is based solely on circumstantial evidence, the prosecution must ensure that all links in the prosecution case are in tact. There must not be any room for doubt or suspicion. In the case on hand there are various missing links. There is no proper explanation from the side of the prosecution as to how those missing links could be ignored. 11. We may also notice that the material witnesses on the side of the prosecution had refused to support its case. There was also no evidence to show that the house from where the dead body was recovered did actually belong to the accused. In short, the evidence adduced by the prosecution is not at all satisfactory warranting conviction of the appellant. The court below in our opinion was not justified in holding the appellant guilty of the charge under section 302 IPC. We have no hesitation to hold that the appellant is entitled to get the benefit of doubt. 12. Therefore the order of conviction and sentence passed against the Crl.A.977/2005. : 6 : appellant is set aside. She is acquitted. The appellant shall be released from custody forthwith, if her continued detention is not warranted in connection with any other case. Criminal Appeal is allowed. A.K. Basheer Judge P. S. Gopinathan Judge an.