IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 CRL.A.No. 682 of 2006 ----------------------- SC.206/2005 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANT: /IST ACCUSED (IN CUSTODY) ------------------------------------------------ MANU PAULOSE, AGED 21 YEARS, D/O.PAULOSE, KAIPPANCHALIL VEED KARUMALA KARA, ELANJI VILLAGE. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT:/STATE ------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. By PUBLIC PROSECUTOR MR. K.J. MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-1-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ************************* Crl..Appeal No.682 of 2006 ****************************** Dated this the 28th day of January 2010 JUDGMENT BASANT, J. Have the incriminating circumstances been proved sufficiently and satisfactorily by the prosecution? Can the circumstances proved lead a prudent mind to the safe conclusion that the guilt of the accused has been established? Is the request of the accused for a further opportunity to adduce evidence justified? These questions arise for consideration in this appeal. 2. 3 accused originally faced indictment for offences under Sections 302, 318 and 201 I.P.C. The appellant before us is the 1st accused. Both others have already been found not guilty and acquitted by the trial court under Section 232 Cr.P.C. 3. The prosecution alleged that the appellant/accused, a young girl/woman at about 4.15 a.m on 16.03.2004 caused the death of her new born live child by gagging the mouth with a cloth and applying force with stone on the neck/head. Crl.A.No.682/06 -2- 4. F.I.R Ext.P1(a) was registered on the basis of Ext.P1 F.I statement lodged by PW1, a sweeper engaged in a government hospital. She had allegedly seen the dead body of the child in M.O1 bucket with M.O2 stone placed on the child in the bucket in the waste dumping area of the hospital. Investigation commenced and PW20, after completion of the investigation, filed the final report against the accused. 5. The appellant/accused denied the offences alleged against her and the prosecution examined PWs 1 to 20 and proved Exts.P1 to P21. M.Os 1 to 7 were also marked. 6. The accused denied all offences alleged against her. Hers was a case of total denial. She did not examine any defence witness. Ext.D1, a property list submitted by the Investigating Officer to Court was proved by her on her side. 7. The court below came to the conclusion that though some witnesses had turned hostile and the prosecution did not succeed in placing evidence before court of all the circumstances that they had originally intended to rely on, the evidence that has been adduced is sufficient to come to a safe conclusion of guilt against the appellant/accused. Accordingly the impugned verdict of guilty, conviction and sentence was passed. The learned Crl.A.No.682/06 -3- Sessions Judge, however felt that in the facts and circumstances of the case, the case deserves to be referred to the Government under Rule 131 of the Kerala Criminal Rules of Practice. Accordingly the judgment was forwarded to the Government and the learned Public Prosecutor reports to us that the Government as per order dated 26.05.2007 has commuted the sentence to a total of simple imprisonment for 5 years. 8. We shall initially try to look at the evidence adduced. PW1, as stated earlier, had seen the dead body of the child and had reported that fact to her superiors and later to the police. Ext.P1 is the F.I statement and Ext.P1(a) is the F.I.R. M.O1 bucket and M.O2 stone were proved through her. PW2 is an attestor to Ext.P2 inquest report which was also prepared on 18.03.2004 by PW19. PW3 doctor conducted postmortem examination and issued Ext.P3 postmortem certificate on 19.03.04. After arrest of the accused, she was referred to PW4 for examination and PW4 issued Ext.P4 wound certificate on 27.03.04 to confirm that the accused had given birth to a child within a period of 2 weeks. PW5 conducted scientific examination of the bucket, stone etc. He issued Ext.P5 report dated 25.03.2004. PW6 Village Officer prepared Ext.P6 scene Crl.A.No.682/06 -4- plan. PW7, a hostel mate of the appellant, was examined by the prosecution to prove what had allegedly occurred on 16.03.2004. She turned hostile to the prosecution completely. Exts.P7 and P7 (a) case diary contradictions were marked by the prosecution in an attempt to discredit her testimony. PW8 is an attestor to Ext.P8 scene mahazar. PW9 is a police constable. He is an attestor to Ext.P9 seizure mahazar for seizure of M.O1 bucket. PW10 is the father of the appellant. He turned hostile to the prosecution completely. Ext.P10 case diary contradictions was marked by the prosecution in an attempt to discredit him. PWs 11 and 12 are neighbours of PW10. According to the prosecution, they were witnesses to the seizure of M.Os 3 and 4 on the basis of information revealed by the accused to the Investigating Officer in the confession statement given by the accused after her arrest. Both of them turned hostile to the prosecution. PW11 went to the extent of denying his signature in Ext.P11, whereas PW12 admitted his signature in Ext.P11. Both of them did not subscribe to the contents of Ext.P11. PW13 is an attestor to Ext.P12, which is a mahazar describing the toilet, which is said to be the scene, where the murder of the child allegedly took place. PW14 is an attestor to Ext.P13 for seizure Crl.A.No.682/06 -5- of the attendance register and the student movement register of the institution, where the appellant was allegedly a student. Exts.P14 and P15 are those documents seized. PW15 is a teacher of the institution where the appellant was a student. She turned hostile to the prosecution completely and did not even state on oath that the accused was a student of the institution. She however proved Exts.P14 and P15, which were produced by her before the police. PW16 is a bus conductor. He was examined to prove the movements of the appellant/accused. He turned hostile to the prosecution. Ext.P16 is a case diary contradiction of his, marked by the prosecution. PW17 similarly is an auto rickshaw driver, who had allegedly taken PW10, the father of the appellant to the institution, where the appellant was a student. PW18 is the secretary of the Local Grama Panchayat. He proved Ext.P17 to show that a nursing college was run in a building under the name of the 2nd and 3rd accused in a specified premise. PW19 is the Sub Inspector of Police who recorded Ext.P1 F.I statement and registered Ext.P1(a) F.I.R. Ext.P2 inquest report was prepared by him. PW20 is the Investigating Officer, who took over the investigation from PW19. He completed the investigation and filed the final report. He proved Exts.P18 to Crl.A.No.682/06 -6- P21. Ext.P18 is a report submitted by him to court. Ext.P19 is the incriminating information in Ext.P11, which is sought to be introduced in evidence under Section 27 of the Evidence Act. Ext.P20 is a document under which the clothes of the appellant were seized by the police. Ext.P21 is the report of the Forensic Science Laboratory. 9. As stated earlier, in the course of cross examination of the prosecution witnesses and later when examined under Section 313 Cr.P.C the accused took up a defence of total denial. No specific explanation whatsoever was offered by her. She proved Ext.D1 which, as stated earlier, is a property list submitted by the prosecution. She relied on the same to bring to the notice of the court the difference in the description of M.O3 in Ext.D1 as against that in Ext.P2. 10. We have heard Sri.Rajit, the learned counsel for the appellant and Sri.Mohammed Anzar, the learned Public Prosecutor. The learned counsel for the appellant submits that the prosecution has not succeeded in proving the circumstances relied on by it satisfactorily and beyond doubt. It is then contended that the circumstances proved do not, at any rate, point unerringly to the guilt of the accused. Crl.A.No.682/06 -7- 11. Though the prosecution had intended to rely on other circumstances also, after evidence, the prosecution was left to rely on the following circumstances. i) That the dead body of a child was found near the place of residence (hostel of the accused) with M.O3 piece of cloth placed on the body; ii) That the accused had given birth to a child about a fortnight prior to 27.03.2004, the date on which PW4 examined her and issued Ext.P4 wound certificate; iii) That the dead body found was of a live born child; iv) That the said child had met with a homicidal death; v) That the dead child was the child born to the accused; vi) No explanation whatsoever is offered by the accused. 12. We shall now consider the contention of the learned counsel for the appellant that these circumstances have not been established. Regarding circumstance No.(i), there cannot virtually be any dispute. The oral evidence of PW1 read along Crl.A.No.682/06 -8- with the evidence of PW19 and Ext.P2 clearly shows that the dead body of a new born child was found near the place of residence (hostel), where the accused was residing. It is also established beyond the semblance of doubt that the child was wrapped in M.O3 when the dead body was found. Ext.P1 F.I statement had reached the court immediately without any delay. Similarly Ext.P2 inquest report had also reached the court immediately after it was prepared. These documents support the oral evidence of PW1 and PW19 and together they establish the first circumstance beyond any semblance of doubt, according to us. 13. We now come to the second circumstance. The evidence of PW4 and Ext.P4 are of crucial relevance now. These pieces of evidence show that the accused had given birth to a child about a fortnight prior to 27/3/2004. We find absolutely no reason to doubt the evidence of PW4 and her evidence is clearly sufficient to establish the fact that the appellant had given birth to a child about 14 days prior to 27/3/2004. Of course, the learned counsel for the appellant has laboriously contended that it would be idle to assume that no other person perceived such advanced pregnancy till the date of delivery. The learned counsel Crl.A.No.682/06 -9- argues that it is extremely artificial and improbable to assume that the appellant was able to conceal her pregnancy from the other students and her parents and relatives and her teachers/hostel warden etc. From this, the learned counsel for the appellant contends that the theory that she was pregnant and had given birth to a child after a full term of pregnancy cannot be accepted. 14. We are primarily concerned with the oral evidence of PW4 and not a semblance of doubt is entertained by us on the question whether the oral evidence of PW4 supported by Ext.P4 can be accepted. The learned counsel for the appellant argues that all the symptoms could have been present even if a medical termination of pregnancy had taken place or an abortion had taken place. The appellant has no such case at all. The prosecution has not been able to secure the evidence of her classmates, parents, teachers etc. Whatever evidence the prosecution had secured we have seen that the relevant witnesses had turned hostile to the prosecution with impunity. In these circumstances that the prosecution was not able to place before court any evidence of perception of her pregnancy by her classmates, teachers, warden, parents etc. is found to be of no Crl.A.No.682/06 -10- significance at all. The same does not, at any rate, dislodge the evidence tendered by PW4 supported by Ext.P4. The clinical perceptions made by PW4 expert clearly and ambiguously support her conclusion that the appellant had given birth to a child about 14 days prior to her examination on 27/03/2004. The second circumstance also, according to us, is established satisfactorily. 15. The 3rd circumstance relied on by the prosecution is that the dead body of the child seen by PW1 was that of a live born child. On this aspect, we have the oral evidence of PW3 and Ext.P3 postmortem certificate issued by him. He has tendered competent evidence. He has explained how he came to the conclusion that the body was of a live born child. The sum total of the evidence of PW3 is that there was unassailable evidence to show that the child had breathed after it was born. This was confirmed in the hydro static test. The learned counsel for the appellant, relying on books of medical jurisprudence, attempts to advance an argument that the mere fact that the lungs of a child had floated in water after its death cannot, ipso facto, be held to be a safe and sure test to come to a conclusion that the child was born alive. The learned counsel for the appellant relying on texts Crl.A.No.682/06 -11- argues that when putrefaction takes place, the presence of gases could lead to flotation of lungs and that by itself cannot be reckoned as the litmus test to decide whether the child was born alive or dead. We have gone through the evidence of PW3 and the contents of Ext.P3. This aspect was not put to PW4 in meticulous details. The learned counsel for the appellant relying on Modi's medical jurisprudence and Toxicology 21st edition page 413 advances an argument that the presence of putrefactive gases may lead to flotation of the lung and this might lead to a mistaken conclusion that it was a live birth. The relevant observations in the book clearly show that in the case of putrefaction, if there is attempt to expel such putrefying gases from the lung, flotation will not take place if the lungs had not expanded on account of breathing. Whereas, any amount of attempt to expel without disintegration of the lung tissue may not lead to sinking if it is a live birth. We note that the opinion of PW3 that it was a case of live birth has not been challenged effectively and the available materials clearly point to the acceptability of the conclusion of PW3 that it was a live birth. In these circumstances, we hold that the 3rd circumstance also has been established satisfactorily and the conclusion of the court Crl.A.No.682/06 -12- below on that aspect does not warrant interference. 16. We now come to the 4th circumstance that the child had met with a homicidal death. The child had injuries on its person. There was effusion of blood. That the child died of the injury suffered described in Ext.P3 is thus established satisfactorily. The learned counsel for the appellant advances an argument that it could be a case of accidental death and not homicidal death. The learned counsel for the appellant relies on text books of Obstetrics & Gynaecology to contend that where precipitate labour takes place, there could be possible expulsion of the baby from the womb and under the pressure of that expulsion when the body of the child comes into contact accidentally with any hard surface, an injury like the one described in Ext.P3 is possible. The learned counsel for the appellant, with great penchant for details, relies upon the description of the scene of the crime - toilet in Ext.P12 and contends that in a situation like that where the pregnant mother may not even have found space to lie down and precipitate labour takes place it is possible that the child thrust out of the womb may suffer such accidental injuries by contact with any hard surface. The learned counsel for the appellant relies on texts to Crl.A.No.682/06 -13- suggest that normally the head of the child comes out first and the doctor cannot be reckoned as an expert on possible positions to jump to a conclusion that the injury described in Ext.P3 is not an accidental injury. 17. We have gone into this contention in detail. The nature of the injury described in Ext.P3 is of crucial importance. We have the clear evidence of PW3 that it is unlikely that such an injury could have been suffered except intentionally by the child. What happened inside the toilet is known only to the accused. We cannot assume - in circumstances like this, that the accused has no burden to explain any circumstance in a criminal trial. Section 106 of the Evidence Act stares at the accused and obliges her to offer a satisfactory explanation. We find not a semblance of a circumstance which can suggest that it could have been an accidental death. The conduct of the accused before and after labour must suggest convincingly that it could not have been a case of accidental death. She deliberately concealed such pregnancy from all concerned till labour took place. Subsequently also, she did not reveal to anyone of her pregnancy, birth or alleged accidental injury suffered during labour. We must hold that, with reasonable certainty, the 4th ground has also Crl.A.No.682/06 -14- been established satisfactorily - that it is a case of homicidal death. 18. The learned counsel for the appellant has taken pains to contend that the 5th circumstance cannot at all be held to have been proved. The learned counsel for the appellant contends that even assuming that the prosecution version that the appellant had given birth to a child can be accepted and even assuming that the child, whose body was seen by PW1, was born alive and had met with homicidal death, that cannot expose the appellant to any responsibility for culpable conduct unless it is established satisfactorily that the body was of the child which was given birth to by the appellant. The learned counsel for the appellant contends that there is significant gap in evidence to link the alleged delivery by the appellant with the child that was found dead. The learned counsel for the appellant argues that on this crucial aspect, there is breaking of the nexus and at any rate, it is not possible to come to a safe conclusion that the child which was found dead/murdered was the child to which the appellant had given birth. 19. We agree that the question deserves to be considered meticulously and carefully. We agree with the learned counsel Crl.A.No.682/06 -15- for the appellant that if this crucial linkage is not established, all the other circumstances referred to earlier shall lose all their significance. The court below found that the child which was found dead was the child born to the appellant. Is this finding correct? Can this finding be supported? These are the next questions to be considered. 20. The learned counsel for the appellant first of all contends that going by the version of the prosecution, the incident had taken place on 16.3.2004. According to the prosecution, the child was born on 16.3.2004 and was done away with on that date. The learned counsel relies on Exhibit P3 to contend that the body that was found by PW1 was described in Exhibit P3 to be the body of a three days' old child. This is inconsistent with the case of the prosecution and the appellant is entitled to the benefit of that crucial incongruity, urges the learned counsel. 21. The learned Public Prosecutor on the other hand contends that such a plea had never been taken at the stage of trial. The learned counsel for the appellant is ingeniously attempting to make use of an innocuous circumstance that the Doctor described the body examined by him to be “aged about Crl.A.No.682/06 -16- three days”. An authentic opinion was not given about the age of the child by PW3 either on oath or in Exhibit P3. Postmortem examination was conducted on 19.3.2004 and the totality of circumstances must lead this Court to come to the conclusion that the age of three days mentioned in the descriptive portion of the postmortem certificate refers only to the gap of time between the date of actual death and date of postmortem examination. We note that no substantive evidence has been adduced by either side on this crucial aspect. The Doctor had not tendered expert opinion on the question of the age of the child or about the gap of time between the death and postmortem examination. In these circumstances, we find merit in the contention of the learned Public Prosecutor that the said statement in Exhibit P3 regarding which no substantive evidence has been tendered and which was not the point of contention at any stage before the appeal is argued cannot be reckoned as sufficient to generate a reasonable doubt on the question of nexus between the child which was given birth to by the appellant and the child whose body was examined by PW3. 22. The learned Prosecutor further points out that a reading of the evidence of PW4 clearly shows that when she Crl.A.No.682/06 -17- referred to the possibility of the child having been born two weeks prior to 27.3.2004, that was only an approximate statement and not a statement that the child was born on 14x24 hours prior to her examination of the appellant. The learned Public Prosecutor is absolutely justified in pointing out that the opinion of PW4 is only that the birth could have taken place approximately two weeks earlier. This cannot lead us to the conclusion that the child must have been born on 13.3.2004 and hence is not the child that was allegedly murdered on 16.3.2004 immediately after its birth. 23. The learned counsel for the appellant submits that it is not as though the prosecution could not adduce authentic and foolproof and clinching evidence to link the child with the appellant. Science and technology has advanced to such an extent that conduct of DNA test could have authentically resolved the question once and for all. In fact, the learned counsel for the appellant points out that, both PWs 3 and 4 Doctors were apprised of and were aware of the need to conduct DNA test. They had taken the necessary samples to get the DNA test conducted. But still the DNA test was not conducted. The learned counsel argues that thereby the possibility of adducing Crl.A.No.682/06 -18- foolproof, clinching and indisputable evidence was squandered by the prosecution and the appellant is entitled to the benefit of doubt on this aspect at any rate, urges the learned counsel. 24. A criminal trial cannot merely be reduced to a search for perfection in the case of the prosecution and in the conduct of the Investigators. This circumstance certainly is relevant. This Court will bear in mind this circumstance while appreciating the totality of evidence. But the mere fact that better and more foolproof evidence has not been adduced cannot lead any court to commit the indiscretion of squandering the acceptable evidence that is already available. We shall look into the evidence very carefully and if we are not otherwise convinced about the linkage between the child born to the appellant and the child found dead, we shall certainly concede to the appellant the benefit arising therefrom. But, we shall not certainly commit the indiscretion of finding fault with the prosecution and Investigators for not adducing better and more foolproof evidence without exhaustively considering the materials that is adduced and is available. 25. The prosecution relied on two circumstances. The first circumstance was that in MO1 bucket in which the body of the Crl.A.No.682/06 -19- child was found, there were strands of hair – one long and one short. The same was perceived by the Investigator. They were taken into custody. After arrest of the accused, her hair sample was taken and the same was sent to the Expert. Exhibit P21 is the report of the Forensic Science Laboratory. In Exhibit P21, it is stated that the long hair found in MO1 bucket was similar to the hair obtained from the scalp of the accused. The learned counsel for the appellant rightly points out that the opinion tendered