VAHITHA versus STATE OF TAMIL NADU

[2023] 3 S.C.R. 942

[2023] 3 S.C.R.

VAHITHA

STATE OF TAMIL NADU

(Criminal Appeal No. 762 of 2012)

FEBRUARY 22, 2023

[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]

Penal Code, 1860 – s.302 – Conviction under – Strangulationof child – Prosecution case that appellant strangulated her fiveyear old child to death while PW-1 (mother-in-law of appellant)Chad gone out of the house – As per the FIR, when PW-1 came backto the house, she saw the appellant tie the outer end of her sareetightly around the neck of the child – During her testimony PW-1stated that she found the appellant sitting silently next to thedeceased child when she came back to the house – Upon hearingDPW-1 shout; daughters of PW-1 i.e. PW-2 and PW-3 also arrived atthe scene of occurrence – Two independent witnesses PW-4 andPW-5 (landlord and neighbour of PW-1) also testified that they sawthe appellant next to the body of the deceased child – According topost-mortem report, cause of death of child was asphyxia due tostrangulation – However, PW-6- father of appellant deposed thatEappellant was with him at his village and that he accompanied herback to in-laws place after receiving information about death ofchild – Trial Court convicted appellant u/s. 302 and rejected pleaof alibi – High Court affirmed findings of trial Court and held thatappellant was last person to be seen with child, hence onus was onFappellant to explain how death occurred – On appeal, held: Pleaof alibi rejected – No evidence adduced to prove that appellantwas not present at time and place of incident; two independentwitnesses testified that they saw the appellant near the body of thedeceased child; appellant arrested on the same day of the incidentat bus stand – Although, there were discrepancies in versions ofGPW-2 between the complaint and her assertions before the Courtsuch discrepancies are normal and natural or the result of her wantof proper comprehension – Trial Court rightly analysed matter andobserved that PW-1 was deposing from memory one year fromincident hence discrepancies would not result in rejection of herHtestimony – Further, saree recovered from appellant had blood stains

– Motive of appellant to not live in matrimonial house and thuscommitting offence cannot be ruled out looking to fact that she wasliving with her parents and was only forced to come to in-laws placefor the upbringing of the child – Further, the appellant has notgiven any explanation in her statement u/s. 313 CrPC apart fromdenying the circumstances put to her – Burden u/s. 106 of theEvidence Act operates heavily against appellant – Alternativesubmission that case would be of culpable homicide not amountingto murder rejected.

Dismissing the appeal, the Court

HELD: 1. The Trial Court and the High Court haveexamined the evidence on record and have rejected this plea ofalibi with reference to the significant features of the case thatthere is no corroborative evidence on record, to the assertionmade by PW-6, that on 20.06.2007, he took his daughter back tohis village Kolakkudi. The accused-appellant did not adduce anyevidence to prove that she was not present at her mother-in-law’s place, at the time and place of incident. Apart from the factthat PW-1, PW-2 and PW-3 consistently maintained their versionsthat the appellant was available at the time and place of incident,two independent witnesses, PW-4, landlord of PW-1 and PW-5,neighbour of PW-1 testified that they saw the appellant sittingwith or near the body of the deceased child immediately after,and at the place of, the incident. Although there appears to be noreason to discard the testimonies of PW2 and PW-3 but even iffor the sake of argument their testimonies are left aside for beingdirectly related witnesses who might not be favourably disposedtowards the appellant, there appears no reason to disbelieve anddiscard the testimonies of PW-4 and PW-5. Nothing even remotelyhas been shown as to why PW-4 and PW-5 would be interested intestifying about the presence of appellant around the time, and atthe place of incident. [Para 15.1][981-B-D]

2. Apart from the foregoing, fact of the matter also remainsthat the appellant was arrested on 21.06.2007 i.e., the very dayof the incident, albeit nine hours after the incident, at the busstand. However, when the theory propounded by PW-6 that theappellant had travelled to his village with him on 20.06.2007 and

Athen travelled back to her mother-in-law’s place on 21.06.2007is discarded, all other facts taken together lead to the logicalconclusion that the plea of alibi is required to be rejected. [Para15.2][981-E-F]

3. Another major factor highlighted and elaborated by theBappellant relates to certain discrepancies appearing in theversions of PW-1, as stated in the complaint made to the policecompared with her assertions before the Court. No doubt, therehad been some such discrepancies in the matter which, at thefirst blush, give rise to certain doubts as to whether the testimonyof PW-1 could be believed or not. However, close look at theCrecord makes it clear that the discrepancies, said to be ofcontradictions in the versions given by PW-1, could only beconsidered to be normal and natural or being the result of herwant of proper comprehension. [Para 16][981-G-H; 982-A]

4. PW-1 is none other than mother-in-law of the appellantDand the grand-mother of the victim child. The first discrepancy inthe matter is that, as per the version in the complaint, she lefther house in the morning to buy idli without taking money, but inher deposition, she stated that appellant gave her Rs. 100 andasked her to get idli. Another major discrepancy surfaces when

Eit is noticed that in the complaint, she asserted that the appellantran away from the scene of occurrence but in her deposition, shestated that the appellant was taken to the police station. Thirdly,what she saw and did upon reaching the house after visiting themarket is also stated differently in the complaint and in thedeposition. The question is as to whether her testimony and theFprosecution case be rejected altogether because of thesediscrepancies. [Para 16.1][982-B-C]

5. The Trial Court has rightly analysed the matter and hasrightly observed that when PW-1, sixty-five years of age, wasdeposing before the Court from her memory after one year fromGthe incident, such discrepancies would not result in rejection ofher testimony altogether. The relevant features emanating fromher assertions in the complaint as also in the statement are thatshe had gone out to purchase eatables in the morning whileleaving the victim child with the appellant; and after coming back,

found the child dead, with the appellant being with the child. Asto whether she had gone to the market after being given moneyby the appellant or without taking money, in our view, cannotoverride entire of her testimony as also the testimonies of otherwitnesses. Further, the said witness PW-1 seems to haveobviously lost the track of facts when she asserted in herdeposition that the appellant was taken to the police station afterthe incident. It has clearly been established on record that theappellant was arrested in the late afternoon at the bus stand andit has nowhere been shown if she was taken to the police stationimmediately after the incident. suggestion made in that regardto the official witness PW-10 has also been specifically denied byher. The said discrepancy in the version of PW-1 is also of norelevance and the concurrent findings of the two Courts cannotbe displaced on that count. Even the version given in thecomplaint as if PW-1 saw the appellant strangling her child seemsto be an overt assertion immediately after the incident. The otherwitnesses who had reached the scene of crime including theindependent witnesses PW-4 and PW-5 have consistentlymaintained that the appellant was available with the dead body ofthe child at the place of, and immediately after, the incident. [Para16.2][982-D-H; 983-A]

6. Taking an overall view of the matter, this Court does notfind any reason that entire prosecution case be disbelieved anddiscarded because PW-1 has not projected the case in consistentmanner. Apart from the private witnesses, all the relevant factshave been duly established in the testimonies of the officialwitnesses too. The discrepancies as noticed in the present case,at the most, could be said to be of minor contradictions orinconsistencies or embellishments of trivial nature; and arereasonably referable to the reasons recounted by this Court inBharwada Bhoginbhai Hirjibhai for which, the minor discrepancies

do occur in evidence and excessive importance cannot beattached to them [Para 16.3][983-B-C]

7. The submission that the assertion about the appellanthaving strangled the victim, by pressing her saree around theneck, does not correlate with the post-mortem examination isalso untenable. As noticed, the medical officers have clearly

Aestablished that the child suffered strangulation with woundmeasuring 20 cm in length and 2 cm in breadth around the neckand with thyroid cartilage bone having been fractured. PW8 alsoopined that if outer end of the saree was twisted and put aroundthe neck and the person was strangled, there was chance ofsuch wound. The saree in question had been duly recoveredBfrom the appellant and was said to be carrying blood stains. [Para17][983-D-E]

8. In the given set of facts and circumstances, the motiveas suggested by the prosecution, i.e., the desire of the appellantnot to live in her matrimonial house and, on being forced to do soConly because of the child, she being not interested in the existenceof the child, though presents somewhat difficult proposition but,at the same time, cannot be ruled out altogether, particularlylooking to the fact that, until 18.06.2007, the appellant was livingwith her parents and she was forced to come to Perambalur forDthe purpose of upbringing of the child with the family of herhusband. [Para 18][983-F]9. Another submission made on behalf of the appellant, thather husband has not been examined by the prosecution, doesnot take her case any further. Her husband was not shown to beEin the country at the time of incident and he was not directwitness in relation to the material facts to be established by theprosecution. Other way round, if at all the appellant consideredhim to be material witness, nothing prevented her from makinga prayer to the Court for his examination and nothing preventedher from making specific submissions in that regard during herFexamination under Section 313 CrPC. [Para 19][983-G-H; 984-

10. As regards the statement under Section 313 CrPC, theappellant has not given any explanation whatsoever and has notmade any statement except denying the circumstances put toGher. In the facts of the present case, when the prosecutionevidence categorically established the fact that the victim childwas last seen alive with the appellant only; she was required toexplain the circumstances leading to the demise of the child. Uponher failure to do so and failure to give the explanation with regardHto the circumstances under which death may have taken place,

burden of Section 106 of the Evidence Act operates heavily againstthe appellant, as noticeable from the decisions above referred,particularly in the cases of Satpal and Sabitri Samantaray . [Para20][984-B-C]

11. The submissions made in the alternative that in the givenset of circumstances, the present case could only be of culpablehomicide not amounting to murder has only been noted to berejected. Even if it be taken that there was quarrel of theappellant with her mother-in-law (PW-1) in the morning of thedate of incident because the appellant wanted to go the place ofher father, it cannot be said that such quarrel would make it acase of grave and sudden provocation. The circumstances asproved on record, and the manner of commission of crime, makeit clear that the present case cannot be brought under any of theExceptions of Section 300 IPC; and conviction and sentencing ofthe appellant under Section 302 IPC cannot be faulted. [Para22][984-E-F]

Pappu v. The State of Uttar Pradesh (2022) 10 SCC321; Mekala Sivaiah v. State of Andhra Pradesh (2022)8 SCC 253; Sharad Birdhichand Sarda v. State ofMaharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;Hanumant v. State of Madhya Pradesh AIR 1952 SC343 : [1952] SCR 1091; Shyamal Ghosh v. State ofWest Bengal (2012) 7 SCC 646 : [2012] 10 SCR 95;Bharwada Bhoginbhai Hirjibhai v. State of Gujarat(1983) 3 SCC 217 : [1983] 3 SCR 280; GangadharBehera v. State of Orissa (2002) 8 SCC 381 : [2002] 3Suppl. SCR 183; Gangabhavani v. Rayapati VenkatReddy (2013) 15 SCC 298 : [2013] 14 SCR 155;Ramnaresh v. State of Chhattisgarh (2012) 4 SCC 257: [2012] 3 SCR 630; Satpal v. State of Haryana (2018)6 SCC 610; Satye Singh and Anr. v. State ofUttarakhand (2022) 5 SCC 438; Sabitri Samantaray v.State of Odisha 2022 SCC OnLine SC 673 – reliedon.

Krishna Mochi v. State of Bihar (2002) 6 SCC 81 :[2002] 3 SCR 1; Leela Ram v. State of Haryana (1999)9 SCC 525 : [1999] 3 Suppl. SCR 435; State of

ARajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8Suppl. SCR 501; State of Haryana v. Bhagirath (1999)5 SCC 96 : [1999] 3 SCR 529; State of Rajasthan v.Kalki (1981) 2 SCC 752 : [1981] 3 SCR 504 – referredto.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.762 of 2012.

From the Judgment and Order dated 09.03.2010 of the High CourtFof Madras in CRLP No.01 of 2010.

Chanchal Kumar Ganguli, Ms. Vandana Tiwari, Anurag Rana,Advs. for the Appellant.

Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,Sanjeev Kumar Mahara, Advs. for the Respondent.G

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

1. This appeal by special leave is directed against the judgmentand order dated 09.03.2010 in Criminal Appeal No. 1 of 2010, wherebyHthe High Court of Judicature at Madras has dismissed the appeal against

the judgment of conviction and order of sentence dated 15.10.2009, aspassed by the Sessions Judge, Mahila Court, Perambalur in SessionsCase No. 9 of 2008, holding the appellant guilty of the offence punishableunder Section 302 of the Indian Penal Code, 1860[1] and awarding her thepunishment of imprisonment for life and fine of Rs. 2,000/- with defaultstipulations.

2. In brief outline, it could be noticed that in this case, theappellant has been convicted of the offence of murder of her five-year-old child in the house of her mother-in-law at Perambalur in the morningof 21.06.2007. According to the prosecution case, the appellant’s husbandwas living abroad for earning livelihood and the appellant was mostlyliving with her father at Kolakkudi. However, on being forced to livewith her mother-in-law for the purpose of upbringing and education ofthe child, she found the child to be an obstacle in her desire to live separateand hence, strangulated the child to death when her mother-in-law hadgone out of the house. It was alleged that the appellant was last seenwith the child and after having killed the child, when her mother-in-lawand other witnesses reached the scene of crime, she ran away and wasapprehended in the late afternoon at Perambalur New Bus Stand. Asper the post-mortem report, the cause of death of the child was asphyxiabecause of strangulation. In the trial, all but one prosecution witnessessupported the accusations against the appellant. Only the father of theappellant deposed to the contrary and asserted that at the relevant pointof time, the appellant was with him at Kolakkudi and he accompaniedher to Perambalur after receiving information about death of the child.After appreciation of evidence, the Trial Court, in its judgment dated15.10.2009, rejected the plea of alibi taken on behalf of the accused-appellant and held proved that the victim child died of asphyxia becauseof strangulation and was last seen alive with the appellant, who failed toexplain the circumstances in which the child died. Hence, the appellantwas convicted of the offence punishable under Section 302 IPC andwas sentenced accordingly. In appeal, the High Court concurred withthe findings of the Trial Court while holding that the ingredientsestablishing culpability of the appellant were clearly established on record.

2.1. In this appeal, the concurrent findings of the two Courts havebeen questioned essentially with reference to certain discrepancies inthe version of the prosecution witnesses and on the ground that the

1 ‘IPC’, for short.

Aprosecution has failed to establish chain of cogent circumstances whichcould lead to the only hypothesis that the appellant had killed her ownchild. These submissions have been countered with reference to theevidence of the prosecution and findings of the two Courts.

3. Having regard to the submissions made and the questions arisingBfor determination, we may take note of the relevant factual andbackground aspects as follows:

3.1. In this case, the First Information Report[2], bearing No. 328of 2007 was registered at Perambalur Police Station at around 9.00 a.m.on 21.06.2007 on the information furnished by PW-1 Basheera, mother-Cin-law of the appellant, about killing of the victim child by her own mother,that is, the appellant. The relevant contents of the FIR, said to have beenscribed by PW-10 Subbulakshmi, SI, Perambalur, read as under:[3] -

“…As my grand daughter is 5 years old, my son had spoken fromRiyat to Kolakkudi and said that she has to go to Perambalur andDstay in my house and educate the child. Hence, Vahida was broughtby her father on 18.6.07 along with grand daughter Farhana anddropped in my house at Perambalur. For two days after her arrivalshe did not properly have the food and also did not speak to meproperly and my daughter-in-law Vahida picked up quarrel withme and was telling me that she is going to Kolakkudi. As I hadEwarned her not to go to Kolakkudi, she was telling that only becauseof this child, I could not live peacefully. My husband is suspectingme. You are also not allowing me to go to Kolakkudi. Only if Ifinish off this child, I shall live peacefully. I, my daughter Mumtaz,my 2[nd] daughter-in-law Asha, and the Kamala, my neighbourFtogether had warned her on the night of 20.6.2007. On 21.06.2007at about 8.00 A.M. I said that I will go and get idli for the child.She said that I could not educate my child here and she wanted togo to Kolakkudi. Hence, there was quarrel picked up betweenme and my daughter-in-law Vaheetha. I told her let us see andwent to get the idli. By that time, my daughter Mumtaz and myGdaughter-in-law Asha came to see me. I being left the home forbuying idli without taking money went along with them came tohouse to take the money. By that time my daughter-in-lawVaheetha, was tying the neck of my grand daughter Farhana who

2 ‘FIR’, for short.

H3 The extractions in this judgment are from the translated copies placed on record.

is aged five years with the outer end of saree (mundanai) portionof her saree and was holding it tight. After seeing this I shoutedwhy are you killing my grandchild. Besides, holding my grandchild’sneck with the saree and killing her, she had pushed us and ranaway through the entrance. The neighbours Kamala andJayaraman came running there, after hearing my scream. I touchedthe child. She was dead…”

3.2. After registration of the FIR (Ex.P10), PW-12 Thiru G.Ayyanar, the first Investigating Officer[4] reached the place of occurrence,photographs of the dead body (Ex. P11) were taken; the rough sketch(Ex. P12) and inquest report (Ex. P13) were prepared; and the deadbody was sent for post-mortem examination. As per the post-mortemreport (Ex. P5), there was wound around the neck of the victim childmeasuring 20 cm in length and 2 cm in breadth; and victim died due toasphyxia because of strangulation.

3.3. According to the first IO, PW-12 Thiru G. Ayyanar, theappellant was arrested at about 5.00 p.m. near ladies washroom at thePerambalur New Bus Stand, i.e., approximately nine hours after theoccurrence. It was alleged that after her arrest, the appellant identifiedthe saree by which the child was strangulated; that the saree allegedlycarrying blood-stains was seized in the presence of attesting witnesses;and that following her arrest, the appellant made confessional statementthat was recorded by PW-12 in the presence of witnesses. Later on, theinvestigation was taken over by PW-14 D. Sivasubramanian, who filedthe charge-sheet for the offence under Section 302 IPC against theappellant. After committal, and upon denial of charge by the appellant,the case was tried as Sessions Case No. 9 of 2008 by the SessionsJudge, Mahila Court, Perambalur.4. In trial, total of fourteen witnesses were examined by theprosecution. The first witness PW-1 Basheera, mother-in-law of theappellant and the informant, was examined as the key witness relatedwith the occurrence. Four other witnesses, PW-2 Mumtaz, daughter ofPW-1; PW-3 Asha Begum, other daughter-in-law of PW-1; PW-4Sharfunisha, landlord of PW-1; and PW-5 Thiru-Jothi, neighbour of PW-1 were claimed to be the witnesses who reached the scene of crimeimmediately after the occurrence. PW-8 Dr. Saravanan and PW-13 Dr.

4 ‘IO’, for short.

AKarthikeyan A. testified respectively to the post-mortem report and thereport with respect to the thyroid cartilage bone of the victim child. PW-9 Devaraj, Village Administrative Officer and PW-7 Sadiq Ali wereexamined as attesting witnesses related with the process of investigation.PW-10 Subbulakshmi had recorded the statement of PW-1 and scribedthe FIR whereas PW-11 Mohammed Munwar Khan was theBphotographer who had taken photographs at the scene of occurrence.As noticed, PW-12 Thiru G. Ayyanar carried out the initial investigationwhereas PW-14 D. Sivasubramanian, SI, Perambalur completed theinvestigation and filed charge-sheet. Apart from these witnesses whosupported the prosecution case, there had been another witness PW-6CJamal Mohammed, father of the appellant, who stated to the contraryand asserted that the appellant was with him at his village Kolakkudi. Inother words, this witness supported the appellant’s plea of alibi.

5. Though elaboration of the entire prosecution evidence is notnecessary for the purpose of the present appeal, but having regard toDthe contentions urged, we may take note of the relevant part ofdepositions, particularly in reference to certain inconsistencies/discrepancies in the assertions of the prosecution witnesses as also inreference to the appellant’s plea of alibi.

5.1. PW-1 Basheera has been the key witness for the prosecution.EIn her testimony, she stated that her son Abdul Raheem had married theappellant; that female child was born to the appellant after the marriage;and that Abdul Raheem was sending all the money earned by him to theappellant. She further stated that Abdul Raheem had called her to saythat his daughter should be admitted in school in Perambalur and hewould send her money for that purpose; and subsequently, on 18.06.2007,FPW-6 Jamal Mohammed, father of the appellant, dropped the appellantand the child to the house of PW-1 with request to educate the child inPerambalur since Abdul Raheem was allegedly not sending the appellantany money. She stated that on the morning of 21.06.2007, the appellantgave her Rs. 100 and asked her to buy idli; that when she came back toGthe house, the appellant was sitting silently next to the child; and thatupon asking, the appellant told her that she had killed the child. Duringcross-examination, this witness stated that she went to the police stationwith the appellant immediately after the occurrence. The relevant partsof her statement read as under: -

“……About 10 months ago, 18[th] day of 6[th] month, my daughter-in-law’s father Jamal Mohammed had brought his daughter, themargin accused and our grand child to my house at Perambalur.My daughter-in-law’s father was telling his daughter, the marginaccused, that on the next day, 19[th] he would be leaving to hisvillage and she has to take care of everything. The margin accusedtold her father that she would take care. On the next day 19[th], theaccused’s father went back to his village. On the next day to that,on 20[th] Wednesday we cooked and had our food and were availablein the house of my daughter Mumtaz. ….. I am residing separatelyafter 4 or 5 houses from her house. (the witness repeats the same.)I told the margin accused to come to my house along with herdaughter and we would admit the grand daughter in school. Theaccused said OK for the same and on that day Wednesday, night,I, the accused and the grand daughter Farhana three of us wentto the house wherein I am staying as tenant for our sleep. In themorning of the next day, at about 6.00 A.M. I went to get thesociety milk. … I bought the milk and made tea and gave to her.Thereafter I told her that I would get meat. For that the marginaccused said that no need of getting meat, and gave me Rs.100/-and asked me to get idli. It would be around 7.00 A.M. I came toFarmers’ market. It took some time. By that time I got the changefor Rs.100/- and got the idli and came back to home. On the sameday, i.e. 21[st] at 6.00 A.M. my son Abdul Raheem had called mydaughter Mumtaz from abroad. The said information was givento me by my daughter Mumtaz on the way to home after gettingthe idli, as the house of my daughter Mumtaz is situated on theway….. I bought the idli and went to my house. The tea whichwas kept by me in glass was there as it is. That tea was kept byme for my grand daughter. It was there as it is. By that time theaccused Vahida was sitting near my grand daughter who waslying there. I told the details given by Mumtaz to me and askedher to wake up grand daughter and give her the tea. For that theaccused was sitting quiet. When I was telling the accused aboutthe admission of my granddaughter into school and she has to talkto my son Abdul Raheem over phone, the accused asked mewhere is the police station. I asked the accused, “What I amtelling you. What you are asking me.” For that the margin accusedsaid that she had killed her daughter. I told her, “none of the mother

who gave birth to child will kill the child. You are telling lie”. Forthat the margin accused said that really she had killed her child.When I was telling the accused that she is telling lie once again,my daughter Mumtaz and my middle daughter-in-law Asha Begumboth of them came into my house. Again I told the accused “Youare telling lie.” And asked her to wake up the child. But again theaccused said that she had killed the child, I shook the head of mygrand daughter. There was blood out of my grand daughter’s nose.My grand daughter Farhana was dead. When I saw that my granddaughter was dead and came out shouting, as said by me earlier,my daughter Mumtaz, my middle daughter-in-law Asha begumcame there. The people also gathered. I had giddiness. They tookme to the neighbouring house and made me to sit there. AnwarBasha had made phone call. Police authorities came to our house.They called me to the police station and asked me. I told them allthat had transpired. The police authorities recorded the same. Ihad affixed my left thumb impression in the same. That was shownto me. When the witness was shown the complaint dated 21.6.2007and asked about the same, as the witness had accepted the samethe above said complaint had been marked as Ex.P1. ….. Theaccused told me that she had put the saree outer end of saree(mundanai) around her neck and murdered her. When the policeauthorities examined me I deposed what had happened.Cross Examination: On the date of the death of my grand daughter,at about 8.30 A.M. the police authorities came to our house. Afterthe police authorities came, seeing that the child was dead, thepolice authorities brought me and the margin accused, my daughter-in-law to the police station. I had deposed the same particularsthat I had deposed in the chief examination, in the police stationalso. If anyone call loudly in front of my house, it would be heardby the persons in the house of my daughter Mumtaz. My sonShamsudeen and his wife Asha Begum both were staying in ahouse in some other street. When I bought idli and came back,Asha Begum and Shamsudeen were not available in the house ofmy daughter Mumtaz……. If it is said that as we did not take anysteps to admit our grand daughter in the school, on 20[th] morningthe father of the accused had left our grand daughter Farhana inour house and left for Kollakudi village, it is incorrect. When Isaw the child was dead and when I came out of the house and

shouted at about 10 or 15 feet distance, Mumtaz and Asha Begumwere coming. The name of my house owner is Majid. I wasresiding in portion of the portico which was covered with asbestossheet. It has only one door. As the place wherein I resided is aportico, there are no windows. When I got the idli and came back,the door of the house was closed tight. I had knocked it stronglyand opened. …. It is incorrect to state that I had not deposedduring the police investigation that on the next day at 6.00 A.M. Iwent to get the society milk and brought the milk. It is incorrect tostate that I had not deposed during the police investigation thatafter making the tea and giving it to my daughter-in-law the marginaccused gave me Rs.100/- to get idli and that I went to thefarmer’s market to get the idli and when I got the idli and wascoming back, through my daughter Mumtaz she said that AbdulRaheem spoke to my daughter Mumtaz over phone. It is incorrectto state that as deposed during my chief examination, I did notmention in the complaint statement as well as during the policeinvestigation, that when I came back the tea which had been keptfor my grand daughter was as it is, and that when I asked theaccused, why she did not wake up granddaughter and give herthe tea, she was sitting quiet, and that when I asked again theaccused said that she had killed the child. … My eldest son JamalMohammed and my another son Shamsudeen, alone were sendingmoney to be from abroad. It is incorrect to state that as AbdulRaheem did not take care of me, after his marriage, I am angrywith him. It is incorrect to state that in the event that my sonAbdul Raheem and the accused did not take care of me, they hadhanded over my grand daughter Farhana to me. If it is said thaton account of this anger, I and my daughter Mumtaz colluded andmurdered my grand daughter, it is false. If it is said that Shamudeenwho came from abroad had given the money and by using hisinfluence, had used me and made false case to be filed againstthe accused, all of them are wrong. If it is said that after hearingthe news of the child’s death, the accused who came to Perambalurat 5.00 P.M. from Kollakudi Village, was taken by all of us andhanded over to the police, all are incorrect.”

5.2. The testimony of PW-2 Mumtaz, daughter of PW-1, assumesrelevance in view of her close connectivity with the occurrence, asasserted by PW-1. The relevant parts of her statement read as under: -

“…..The name of the daughter of the margin accused is Farhana.The child died on the 21[st] day of June, 2007. Two days earlier, theaccused and her daughter stayed at Perambur as guests. Mymother is residing separately in house which is away slightlyfrom my house. By that time, along with my mother, the marginaccused and her daughter were staying when they came toPerambalur. The accused and her daughter were residing in mymother’s house separately. On the date of incident, between 7.30to 8.00 A.M. my mother went to get idli. When my mother got idliand went home, my mother shouted. People gathered there. Wewent to that place. I saw that the accused’s daughter wasdead…..When I asked margin accused, she said that she hadkilled the child. (The witness once again said this). At about 7.00A.M. on that day, my younger brother Abdul Raheem had calledme over phone and said that Vahida i.e. the margin accused shouldnot go anywhere and that the accused’s daughter has to be admittedin the school. My younger brother Abdul Raheem told me overphone that I have to tell the accused to admit the school inPerambalur and to stay along with my mother. When my mothergot idli and came back, I told the details as said by my youngerbrother, Abdul Raheem over phone. My younger brother told meover phone to bring the margin accused and keep her in my houseand before I could do the same, the incident had taken place.When I saw, Farhana was dead with the blood coming out of thenose and mouth. When the police authorities examined me, Ideposed the above details. That is all.

Cross Examination: After my mother got idli she shouted within 5minutes. By that time 20 or 30 persons gathered there. Immediately,between 9.30 and 9.45 A.M. the police authorities came there.When I went and saw and asked the accused, the accused wassilent and this had been deposed by me in the chief examinationand the same had not been deposed during the investigation bythe police authorities. I did not depose during the investigation bythe police authorities about the phone call from Abdul Raheem at7.00 A.M. on that day, and the details of conversation and alsoabout my informing the same to my mother, as I had deposed inmy chief examination…. After the marriage the accused and herhusband did not have smooth relationship with my mother. In thesecircumstances, if it is said that the accused had left her daughter

for educating her in my mother’s house and on 20[th] she went toKolakkudi Village they are all false. The reason for the death ofthe child who had been left as such is me and my mother, they areall false.”

5.3. PW-3 Asha Begum, the other daughter-in-law of PW-1, alsoallegedly reached the scene of occurrence at the relevant point of time.She allegedly asked the appellant as to why she killed the child but theappellant did not answer. During her cross-examination, this witnessmentioned that she was not speaking to the appellant for four years priorto the occurrence. The relevant parts of her statement read as under: -

“….The margin accused had daughter by name Farhana. Shedied on 21.6.2007. On the date of incident, the accused, herdaughter were staying in the house, wherein Basheera was staying,along with P.W.1 Basheera. After my mother-in-law got the idli,when she shouted, I and my sister-in-law Mumtaz went to thehouse of my mother-in-law. My mother-in-law was residing in ahouse 5 houses away from my house. When I went there andsaw, the child of the accused was instable. One nurse came andsaw the child and confirmed that the child was dead. My sister-in-law Mumtaz had said accused “Why did you do like this. If youdo not like the child, you would have left her with me” and shewas beating on her head. I also asked the accused “You are aneducated woman. Isn’t it? Why did you kill the child” and shoutedat her. The accused did not speak anything. When the policeauthorities examined me, I deposed the above said particulars. Ifit is asked who is the cause for the death of Farhana, her motheris the sole reason. That is all.

Cross-examination: I had deposed the facts which had been saidby me in the chief examination, during the police investigationalso. On the date of incident, my husband came from abroad forhis holidays. I and the margin accused are not speaking with eachother for the past four years. Two days before the death of Farhana,the accused came with her child to our house. After she came,she asked my husband that the husband of the margin accusedAbdul Raheem is not sending money to her and that he is also notcalling her over phone, and that she wanted to educate her childFarhana. My husband asked the margin accused keeping silentfor all these years, now you have come here. Thereafter, the

accused took the child and went to the house of my mother-in-law. I did not say the details of my sister-in-law Mumtaz, askingthe accused after seeing the dead body of the child, during thepolice investigation. It is incorrect to state that the accused is notthe cause for the death of Farhana and that as there is no contactbetween me and the accused for the past four years, I am adducingfalse evidence against the accused. As the accused did not cometo us, there is no contact between us.”

5.4. PW-4 Sharfunisha, the landlord of PW-1, deposed that whenshe came back to her house, she saw the child with the appellant. Thewitness also claimed that she heard the appellant admit that she hadCkilled the child. The relevant parts of her statement could also bereproduced as under: -

“… P.W.1 Basheera is residing in portion of our house. At thetime of the incident, the margin accused came as guest toBasheera’s house. Only then I came to know her. Before that, Ido not know the margin accused. The margin accused came withher child to the house of Basheera and stayed there. On 21.6.2007,the child of the accused was dead. I came to send my child toschool by bus went near to Perambalur Farmers market and cameback to my house, after sending my child. People were talkingthere that the accused had killed her child. When I saw that child,the margin accused was there. She said the crowd that she hadkilled her child by straggling with her saree outer end of saree(mundanai) around her neck. I was there at that time. When thepolice authorities examined me I deposed the above particulars.

Cross Examination: Basheera is residing in our house as tenantwith the monthly rent of Rs.350/- for the past two years. It isincorrect to state that I did not depose during the police investigationthat I went to send my child to school and after sending my child,when I came back, I saw the crowd in my house. I did not tell thepolice authorities that the accused had said the crowd that shestraggled the child with her saree outer end of saree (mundanai).It is incorrect to state that I do not know the accused and that Ihad not seen the accused on the date of the death of her child. Itis incorrect to state that as Basheera is our tenant, I am adducingfalse evidence.”

5.5. PW-5 Thiru-Jothi, neighbour of PW-1, testified to have seenthe appellant for ten minutes, when the appellant was sitting near thebody of the deceased child. Her deposition could also be usefullyreproduced as under: -

“My name is Jothi. My father’s name is Veerasamy. I am residingat Perambalur. Witness Basheera is residing in the house next toour house. About 4 or 5 months ago, one day on the date of deathof the child, I had seen the accused for 10 minutes. The marginaccused’s child had passed away on that day. Only on the date ofthe death of the accused’s child, I had seen the margin accusedwhen she was sitting near the dead body of the child in the housewherein witness Basheera was staying. By that time, it would bearound 8 or 8.15 A.M. P.W.1 Basheera was crying and said themother who gave birth to the child itself had murdered the child. Itold her to go to the police station and not to do anything else. Itold this at the time of police investigation.

Cross-examination: It is incorrect to state that I had not deposedthe details as mentioned in the chief examination, during the policeinvestigation. It is incorrect to state that I am adducing falseevidence.”

5.6. As noticed, the prosecution examined two medical officersas regards post-mortem examination of the dead body of the victim childwho testified to the injuries noticed on the dead body and as regards thecause of death. PW-8 Dr. Saravanan testified that there was woundmeasuring 20 cm in length and 2 cm in breadth around the neck; and thethyroid cartilage bone was fractured, which was consistent withstrangulation. He also opined that if outer end of saree was twisted,put around the neck and strangled, there was chance of such wound tothe child. During cross-examination, he deposed that the wound wouldbe more than 2 cm if saree was tied around the neck. However, in re-examination, he clarified that the wound could be less than 2 cm if thesaree was completely twisted in small measurement. PW-13 Dr.Karthikeyan A. has been the doctor who gave the report in respect ofthe thyroid cartilage bone. As per his examination, the fracture of thethyroid bone was ante-mortem and there was chance that it was causeddue to strangling. However, during cross-examination, he stated that ifthe neck is strangled using saree, there is less likelihood of marks.The fact that the victim child died due to asphyxia because of strangulation

Ais as such not matter of dispute and hence, we need not elaborate onthese testimonies.

5.7. As regards the police personnel related with this matter, PW-10Subbulakshmi, Sub-Inspector of Perambalur, recorded the statementof PW-1 and scribed the FIR. She deposed that at around 9:00 am, PW-B1 came to the police station to file complaint. During cross-examination,she clarified that PW-1 had not deposed in her original complaint thatshe had come out of her house and shouted after realising that the childwas dead and had not brought the appellant to the police stationimmediately after the occurrence. She also denied the suggestions in thecross-examination that she visited the place of occurrence at 8:00 a.m.Cand brought the witnesses as also the appellant with her to the policestation. The relevant extracts from the testimony of PW-10 are as under:-“…On 21.6.2007 at 9:00 A.M. when I was on duty, Basheera,wife of Mohammed Kasim, aged 65 years, residing at No. 230/48D, Cross Street, Renga Nagar, Perambalur, came to the stationand had deposed the complaint and I recorded the same in writing.After deposing the complaint, I had read out the statement toBasheera. As she said that it was as deposed by her, and as shesaid that she did not know to sign, I had obtained her left thumbimpression in the complaint…

Cross Examination:…In the complaint that had been deposed tome it had not been indicated that after the incident was over, themargin accused was brought by the complainant Basheera to thePerambalur Police Station. When Basheera deposed, AnwarBasha was with her.… The witness Basheera did not depose inthe complaint that after seeing that the child was dead, Basheeracame out of the house, and shouted and thereafter the witnessesMumtaz and Asha Begum came there. Basheera did not deposein the complaint that she went to get the society milk at 6:00 A.M.She did not depose in the complaint that when she bought the milkand came on the way she met her daughter Mumtaz at her houseand talked to her. The witness Basheera did not depose in thecomplaint that after coming to house, the accused had givenRupees one hundred for getting idli and that she had taken thesame and went to the farmer’s market to get idli. The witnessBasheera did not depose in the complaint that after she came tothe house, the house door was locked and she had knocked the

door and opened the same. If it is said that after coming to knowof the incident, I went to the place of incident at 8.00 A.M. itselfand I had brought the witnesses, Basheera, Mumtaz and AshaBegum to the police station, they are all incorrect. If it is said thatat that time, I had taken the margin accused along with the abovesaid witnesses, it is also incorrect…”

5.8. PW-12 Thiru G. Ayyanar was the first IO in the case. Hestated to have received the FIR at 10:15 a.m. on 21.06.2007 andcommenced the investigation. For the purpose, he went to the place ofincident and examined few witnesses; prepared the mahazar; and seizedthe articles like mat and pillow. He also stated to have arrested theappellant at Perambalur New Bus Stand and having recorded herconfessional statement in the presence of witnesses. He further statedto have seized the saree said to have been used in the offence. Therelevant parts of his testimony read as under:

“…On the same day at about 17.00 hours, I had arrested theaccused Vahida in the Perambalur New Bus Stand. I hadexamined the margin accused and recorded her confessionstatement before the witnesses Devaraj and Parameswaran. Themargin accused said in her confession statement that she hadkilled the child by strangling her neck with the saree which shewas wearing. The admitted portion of the confession statementhad already been marked as Ex. P9. As per the confessionstatement, the saree which she was wearing was seized by mewith the assistance of the lady police under the mahazar. Themahazar for the same was the one shown to me. That had alreadybeen marked as Ex. P8. The saree which was seized by me is theone shown to me. That had already been marked as M.O.3. ….

Cross-Examination:In Ex.P8 Mahazar, it had been indicated thatthrough the Sub-Inspector, Subbulakshmi the accused was giventhe alternate saree. The accused who was arrested at 5.00 P.M.on that day, was kept by me till 6.45 P.M. in the Perambalur NewBus Stand only. In the last portion of the confession statement, ithad not been mentioned that the sub-inspector Subbulakshmi wassent to get the alternate saree. It had been indicated that the ladypolice had been sent and the alternate saree was brought… Theevening newspapers which are published in Perambalur wouldcome at 5.00 P.M. If it is said that in the Maalai Malar newspaper

Adated 21.6.2007, which had been circulated at 5.00 P.M. on thatday, it was indicated that the accused of this case had beenarrested, I do not know of the same. I did not give such news. Ifit is said that in the same newspaper, the news stating that thepolice authorities are conducting the investigation to witnessBasheera, I do not know of the same. The witnesses BasheeraBand Mumtaz had deposed that after the incident was over, themargin accused ran from the house. If it is said that in the circulationof Dinakaran and Dinamalar newspapers, it had been indicatedthat after the incident was concluded, the mother of the child waslying down near the child, I do not know of the same. It is incorrectCto state that after the death of the child the margin accused hadran away from the house and that we had published the newsfalsely stating that the margin accused was lying near the deceasedchild. It is incorrect to state that the witnesses Basheera, Mumtazand Ashabegum had deposed during my investigation that theyhad seen that the child was dead. It is incorrect to state that onD20.6.2007 itself, the margin accused had left her female child tothe witness Basheera, and she went to Kolakkudi Village on thesame day. It is incorrect to state that on 21.6.07, the accused whowas in Kolakkudi village had the information that her child wasdead and that she came to Perambalur by bus and when she gotEdown, I had arrested her….”

5.9. PW-14 D. Sivasubramanian had been the other police officerwho carried out the later part of investigation, recorded the statementsof other witnesses and then filed the charge-sheet. For the presentpurpose, we need not elaborate on the testimony of this witness or theFother witnesses who had been part of the investigation including thephotographer and the attesting witnesses.

5.10. However, the testimony of PW-6 Jamal Mohammed, fatherof the appellant, assumes relevance in the present case, particularly whenhe did not support the prosecution version and deposed in support of theplea of alibi as taken by the appellant by asserting that he had left thechild with PW-1 on 20.06.2007; had taken the appellant with her toKolakkudi village, and the next day, he came to Perambalur with theappellant after getting information about demise of the child, when theappellant was arrested at the bus stand. This witness was treated as ahostile witness and permission was granted to the prosecution to cross-

examine him. He was, of course, not cross-examined by the defence.The relevant parts of the statement of this witness could be usefullyreproduced as under: -

“….On 16.6.2007, I had called Shamsudeen who came fromforeign country over phone. He asked me to come on Monday.On 18[th] I took my daughter, the margin accused and mygranddaughter Farhana and went to the house of Shamsudeen. Italked to Shamsudeen that if leave the child in Perambalur foreducation and if she is in their protection, Abdul Raheem wouldbe sending the money. Shamsudeen asked me to tell this to hismother. I went there and told that. She asked me to tell the sameto her daughter Mumtaz. In this manner, I was telling for 3 days.They did not respond properly. When I started to go to the village,my son-in-law’s mother asked me to leave her grand daughterFarhana alone and take my daughter along with me. On 20[th]Wednesday at 6.00 P.M. I took my daughter alone and went toKolakkudi Village. The next day morning we got the informationover phone that the child Farhana was dead. We came toPerambalur. They had arrested my daughter. My son-in-law AbdulRaheem is not sending the sufficient money. In thesecircumstances, this witness had been treated as hostile witnessby the prosecution and sought permission for the cross examination.The permission was granted for cross examination.Cross-examination on the side of the prosecution: As AbdulRaheem did not send the money properly and manage the family,we dropped his child in Perambalur. No one said us to go toPerambalur. We ourselves went to the eldest son of the familyShamsudeen. As no one had responded at Perambalur we did nottake steps to take the child again to Kolakkudi. As she i.e. myson-in-law’s mother asked to leave the child and go, we had leftthe child and went from there. I was working in foreign countryearlier. At present I am running the poultry shops business. If it issaid that I had deposed during police investigation, that my daughtermargin accused used to tell me that she is going to mother-in-law’s house and hospital, and was going in wrong way, it is notcorrect. The police authorities did not examine me. If it is saidthat the margin accused was not staying in my house properlyand that the conduct of the accused is not good and that if the

Asame is revealed out it will spoil the prestige of my family, andhence I did not reveal it, they are all incorrect. If it is said thatduring the police investigation, I had deposed that my son-in-lawwho came to know all these details, had called over phone andtold me to drop the margin accused and his child in the house ofwitness Basheera, they are all incorrect. It is incorrect to stateBthat during the police investigation I had deposed that thereafter Ihad taken the margin accused and her child and dropped them inthe house of witness Basheera. If it is said that during the policeinvestigation, I had deposed that when I dropped them and startedto leave Permabalur, the accused told me that she could not stayCin Perambalur and that she will be coming soon to me and that Ihad advised her to do as said by the accused’s husband and I leftfrom there, they are all incorrect. If it is said that, during the policeinvestigation I had deposed that on the next day, I came to knowover phone that my daughter, the margin accused had killed mygrand daughter Farhana and that thereafter I came to PerambalurDand saw my granddaughter who was dead and that the accusedhad ran away, they are all incorrect. If it is said that, during thepolice investigation I had deposed that as the accused could notact as per whims and fancies at Perambalur, the accused hadkilled her child, it is incorrect. It is incorrect to state that as theEaccused is my daughter, I am adducing false evidence.”

5.11. In her examination under Section 313 of the Code of CriminalProcedure, 1973[5], the appellant denied all the allegations made againsther as false.

6. With the aforesaid status of record, the Trial Court heard theFparties and proceeded to decide the matter by way of its judgment andorder dated 15.10.2009.

6.1. The Trial Court held that although PW-1 to PW-3 were relatedwitnesses but, PW-4 and PW-5 were independent witnesses who hadseen the child and the accused-appellant together; and there was noGnecessity for them to depose against the appellant. The Trial Court alsoheld that the testimony of PW-1 could not be discarded merely becauseof minor contradictions, given that she might not have been able toremember certain details on account of her age and other factors. The

5 ‘CrPC’ for short.

Trial Court also referred to the statement of PW-6, the hostile witness,who admitted the fact that the appellant was arrested at the bus stand;and held that the appellant had not fulfilled the burden of proving alibi,since there were two independent witnesses who saw her at the sceneof occurrence. Further, the Trial Court held that the oral testimony wasconsistent with the cause of death determined by the medical findings.

6.2. After finding that the appellant was the last person to be seenwith the victim child, as established by the testimony of PW-1 to PW-5,the Trial Court highlighted the importance of cogent evidence establishingthe chain of circumstances; and held that the prosecution had dischargedits burden of proving beyond reasonable doubt that the appellant hadcommitted the offence of murder of the victim child. The Trial Courtsummed up its conclusion as follows: -

“38. In the case before us also, the accused who had been leadingan independent luxurious life with the money more than sufficient,not willing to live with P.W.1 for the sake of the education of herchild, and without considering that the child was born to her withan intention to cause death to the child, and also knowing full wellthat the act being committed by her would cause death to thechild on 21.6.2007 at 8.00 A.M. in the house of P.W.1, whenP.W.1 was not available at house, she had twisted outer end ofher saree and strangled around the neck of her daughter 6 yearsold Farhana, who was sleeping and the thyroid cartilage bonewas fractured and thus caused the death. In order to prove thecharge, the prosecution had placed the oral evidences anddocumentary evidences in cogent manner like chain.”

6.3. Accordingly, the Trial Court held that the appellant was guiltyof the offence under Section 302 IPC and awarded the sentence asnoticed hereinbefore.

7. The appellant challenged the decision of the Trial Court beforethe Madras High Court in Criminal Appeal No. 1 of 2010, which wasdismissed by the impugned judgment and order dated 09.03.2010.

7.1. While accepting the submissions that there had been certaininconsistencies in the statements made by PW-1, the High Court heldthat the only point for consideration was as to whether the child was leftin the custody of the appellant at the time of occurrence; and after detailedexamination of the evidence on record, affirmed the findings of the Trial

ACourt that the appellant was the last person seen with the deceasedchild. Hence, the High Court observed that the onus was on the appellantto explain as to how the death was caused. Addressing the plea of alibi,the High Court also held that such plea was not tenable because PW-4 and PW-5 were independent witnesses, both of whom testified thatthe appellant was available at the place of occurrence on 21.06.2007;Bthat she was arrested on the very same day she was seen with thedeceased child; and that she was the only person available with the childat the time of occurrence. The High Court, inter alia, observed andheld as under: -

“13. Now learned counsel brought to the notice of this Court thatCaccording to P.W.1, when she was returning from the house, shefound that the accused was strangulating the child, which was notavailable in 161 statement. It is true, when she gave Ex.P1 report,she has stated that she actually found the accused/appellantstrangulating the child, which was not available in 161 statement.DEven then, the only point that arises for consideration at this junctureis that when the child was left in the custody of the mother/appellant by P.W.1 at the time of occurrence, when P.W.1 cameback, she found only the dead body of the child. At the time ofoccurrence, the appellant alone was available along with the child.Hence, it is for the accused to explain as to how the death wasEoccurred. In the instant case, the prosecution proved that the childdied of asphyxia due to strangulation. If to be so, it is for themother/appellant to explain as to how the death was caused.”“14. The defence plea putforth before the Trial Court and equallyhere also is that the accused was absent during the relevant timeand she left the place leaving the child along with P.W.1. TheCourt is unable to agree with the same for more reasons thanone. It is false plea. Firstly, P.Ws.4 and 5 are independentwitnesses, who are neighbors. According to P.Ws.4 and 5, theaccused was very much available at the place of occurrence,which took place on 21st June, 2007 morning. Secondly, accordingto the police, she was arrested on the very day and she wasproduced before the Court. When the occurrence had taken placeat 8 a.m., the case came to be registered at 9 a.m. and the FirstInformation Report reached the Court on the same day. Thirdly,the accused was the only person available with her child at the

place and time of occurrence and it is for the accused to explainas to how the occurrence had taken place. But, she did not explain.Under such circumstances, it is quite clear that the prosecutionhas proved its case that except the accused, no one could havecommitted the murder of the child.”

7.2. In view of the above and taking all the factors intoconsideration, the High Court upheld the judgment of the Trial Court anddismissed the appeal.

8. Assailing the judgment and order aforesaid, learned counsel forthe appellant has put forward variety of submissions, particularlyassailing the findings in question with reference to several discrepanciesappearing in the prosecution case; the factum of strained relationsbetween the husband of the appellant and PW-1 to PW-3 for which,they might be interested in deposing against the appellant; the plea ofalibi of the appellant, particularly with reference to the testimony of PW-6 Jamal Mohammed; and no likelihood of motive for the appellant to killher own child.

8.1. Learned counsel has made elaborate reference to the contentsof the complaint and several contradictions appearing in the versionoccurring in the complaint from that occurring in the statement of PW-1Basheera, particularly when in the complaint she alleged to have left herhouse for buying idli without taking money but, in the deposition, she hasstated that the appellant gave her Rs. 100 and asked her to get idli; whenin the complaint, PW-1 asserted that the appellant ran away from thescene of occurrence, but in her deposition, she stated that the appellantwas taken to the police station. Various other contradictions as to whatPW-1 saw and did after reaching back the house have also been referredto.

8.2. Learned counsel has also referred to the omission in thestatements of witnesses that the appellant twisted her saree andstrangulated the child by pressing the same around the neck and hassubmitted that their versions do not correlate with the post-mortemexamination.

8.3. Learned counsel has submitted that there was no conclusiveproof as regards the theory of arrest of the appellant at the bus standand has relied upon the testimony of PW-6 Jamal Mohammed that theappellant was arrested at the bus stand only when she came back to

APerambalur with him after receiving information about the demise of thechild. Further, with respect to the statement of PW-6, learned counselhas argued that plea of alibi taken by the appellant is clearly establishedon record and looking to the background facts, particularly the strainedrelations of the appellant with her mother-in-law and other relatives ofher husband, the plea of alibi and assertion of PW-6 that he and theBappellant left the child in the company of PW-1 and her relatives cannotbe ignored.8.4. Learned counsel has also argued that the motive as suggestedby the prosecution that the appellant wanted to live lavishly and for thatpurpose killed the child remains baseless as the appellant was livingCalone in her matrimonial house immediately after the marriage whereher husband used to stay during his short visits to India. In this regard,the learned counsel has also submitted that husband of the appellantwas never examined by the prosecution as regards her conduct andhence, there is no basis to allege motive. It has also been submitted thatDin view of the admitted fact that there were strained relations betweenhusband of the appellant and PW-1, possibility of the appellant beingfalsely implicated so that PW-1 could derive monetary benefit from herson, husband of the appellant, cannot be ruled out.

8.5. Learned counsel has argued in the alternative that the caseEdoes not fall under Section 302 IPC, particularly in view of the fact thatadmittedly there had been strained relations between the parties andeven as per the version of PW-1, on the morning of the date of incidentitself, she and the appellant had entered into quarrel as the appellantwanted to go to the place of her father, Kolakkudi. In the givencircumstances, according to the learned counsel, even if the accusationsFagainst the appellant are taken into consideration, it could not be casebeyond culpable homicide not amounting to murder.

8.6. Learned counsel has relied upon various decisions of thisCourt including that in the case of Shyamal Ghosh v. State of WestBengal: (2012) 7 SCC 646 as regards the witness discrepancies;GSharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC116 as regards circumstantial evidence and the factors when accusedwould be entitled to benefit of doubt as also with regard to the testimonyof interested/related witnesses; and Ramnaresh v. State ofChhattisgarh: (2012) 4 SCC 257 as regards entitlement of the accusedHto maintain silence in examination under Section 313 CrPC; and obligation

on the part of the Trial Court to put the material evidence to the accusedto extend an opportunity of explanation.

9. Per contra, learned counsel for the respondent-State hassubmitted that the prosecution has discharged its burden of proving beyondreasonable doubt that the appellant committed the offence punishableunder Section 302 IPC.

9.1. Learned counsel has argued that minor discrepancies in thestatements of witnesses have no effect on the prosecution case, andthat presence of the appellant alone with the child has been corroboratedby the testimony of independent witnesses. In this regard, reliance hasbeen placed on various decisions including those in BharwadaBhoginbhai Hirjibhai v. State of Gujarat : (1983) 3 SCC 217; KrishnaMochi v. State of Bihar : (2002) 6 SCC 81 and Leela Ram v. State ofHaryana:(1999) 9 SCC 525 to submit that minor contradictions arenormal and are bound to appear in the statements of witnesses.

9.2. It has further been submitted by the learned counsel that theappellant was the last person to be seen with the child before she died;therefore, she had special knowledge about the death of the child andwas required to provide an explanation in terms of Section 106 of theEvidence Act, 1872[6] about the circumstances under which the deathtook place. In this regard, learned counsel for the respondent-State hasrelied upon various decisions including those in Satpal v. State ofHaryana : (2018) 6 SCC 610; and State of Rajasthan v. KashiRam:(2006) 12 SCC 254 to submit that if the accused does not offeran explanation under Section 106 and there is corroborative evidenceestablishing chain of circumstances leading to the conclusion of guilt,the accused could be convicted on that basis.9.3. It has also been submitted that the testimonies of PW-1 toPW-5 clearly establish the fact that the appellant was present at theplace of occurrence and hence, her alibi has not been proved. The appellantwas required to furnish some explanation under Section 313 CrPC butshe did not do so, leaving no room for doubt that she was responsible forthe death of the child.

9.4. Coming to the question of reasonable doubt, learned counselhas contended that this benefit cannot be stretched and the prosecution

6 ‘Evidence Act’ for short.

Acannot prove its case without there being an iota of doubt. To substantiatethis argument, the learned counsel has relied upon several decisionsincluding those in State of Haryana v. Bhagirath : (1999) 5 SCC 96;Gangadhar Behera v. State of Orissa: (2002) 8 SCC 381 and KrishnaMochi (supra) wherein it was held that it is impossible to prove all theelements in criminal trial with scientific precision and that reasonableBdoubt must not be ‘trivial’ or ‘merely possible’ doubt.

9.5. The learned counsel for the respondent-State has alsocountered the argument that PW-1 to PW-3 were biased witnesses bysubmitting that in the instant case, there was no reason to falsely implicatethe appellant or protect the real culprit. In this regard, reliance has beenCplaced on Gangabhavani v. Rayapati Venkat Reddy:(2013) 15 SCC298 and State of Rajasthan v. Kalki : (1981) 2 SCC 752 to submitthat witness can only be called “interested” when they derive somebenefit out of the litigation. Natural witnesses are not interested witnesses,and if related witness was present at the scene of occurrence, hisDdeposition cannot be discarded.

9.6. It has also been submitted on behalf of the respondent-Statethat last seen theory would not apply to PW-1 as she was never foundpresent alone with the deceased child. It has further been contendedthat PW-1 would not have benefitted in any way from the death of theEchild.

9.7. Thus, learned counsel for the respondent-State would submitthat when duly established chain of circumstances leads to no otherplausible hypothesis than the guilt of the appellant, no case for interferencein the concurrent findings of the Trial Court and the High Court is madeFout.

10. We have given anxious consideration to the rival submissionsand have examined the record with reference to the law applicable.

11. As noticed, the Trial Court and the High Court have concurrentlyrecorded the findings in this case that the prosecution has been able toGsuccessfully establish the chain of circumstances leading to the onlyconclusion that the appellant is guilty of the offence of murder of herdaughter. The concurrent findings leading to the appellant’s convictionhave been challenged in this appeal as if inviting re-appreciation of entireevidence. Though the parameters of examining the matters in an appealby special leave under Article 136 of the Constitution of India have beenH

laid down by this Court in several decisions but, having regard to thesubmissions made in this case, we may usefully reiterate the observationsin the case of Pappu v. The State of Uttar Pradesh: (2022) 10 SCC321 wherein, after referring to Articles 134 and 136 of the Constitutionof India and Section 2 of the Supreme Court (Enlargement of CriminalAppellate Jurisdiction) Act, 1970 as also with detailed reference to therelevant decisions, this Court has summed up the subtle distinction in thescope of regular appeal and an appeal by special leave as follows: -“71.…. In such an appeal by special leave, where the trial courtand the High Court have concurrently returned the findings offact after appreciation of evidence, each and every finding offact cannot be contested nor such an appeal could be dealt withas if another forum for reappreciation of evidence. Of course, ifthe assessment by the trial court and the High Court could be saidto be vitiated by any error of law or procedure or misreading ofevidence or in disregard to the norms of judicial process leadingto serious prejudice or injustice, this Court may, and in appropriatecases would, interfere in order to prevent grave or seriousmiscarriage of justice but, such course is adopted only in rareand exceptional cases of manifest illegality. Tersely put, it is not amatter of regular appeal. This Court would not interfere with theconcurrent findings of fact based on pure appreciation of evidencenor it is the scope of these appeals that this Court would enter intoreappreciation of evidence so as to take view different than thattaken by the trial court and approved by the High Court.”

11.1. This proposition has been recapitulated in the case ofMekala Sivaiah v. State of Andhra Pradesh:(2022) 8 SCC 253,inthe following words: -

“15. It is well settled by judicial pronouncement that Article 136 isworded in wide terms and powers conferred under the said Articleare not hedged by any technical hurdles. This overriding andexceptional power is, however, to be exercised sparingly and onlyin furtherance of cause of justice. Thus, when the judgment underappeal has resulted in grave miscarriage of justice by somemisapprehension or misreading of evidence or by ignoring materialevidence then this Court is not only empowered but is well expectedto interfere to promote the cause of justice.

972SUPREME COURT REPORTS

A16. It is not the practice of this Court to re-appreciate the evidencefor the purpose of examining whether the finding of factconcurrently arrived at by the trial court and the High Court arecorrect or not. It is only in rare and exceptional cases wherethere is some manifest illegality or grave and serious miscarriageof justice on account of misreading or ignoring material evidence,Bthat this Court would interfere with such finding of fact.”

12. Learned counsel for the appellant has endeavoured to arguethat there are several shortcomings and lacunae in the prosecution case,particularly in view of several inconsistencies and contradictions in theversions of the witnesses; and that the relied upon factors are not providingCsuch links in the circumstances which may lead to the finding on the guiltof the appellant. While dealing with such submissions, we may usefullytake note of the basic principles applicable to this case, as noticeablefrom the relevant cited decisions.

12.1. The principles explained and enunciated in the case ofDSharad Birdhichand Sarda (supra) remain guiding light for the Courtsin regard to the proof of case based on circumstantial evidence. Therein,this Court referred to the celebrated decision in the case of Hanumantv. State of Madhya Pradesh: AIR 1952 SC 343 and deduced fivegolden principles of proving case based on circumstantial evidence inEthe following terms:-

“152. It may be useful to extract what Mahajan, J. has laid downin Hanumant case:

“It is well to remember that in cases where the evidence is of acircumstantial nature, the circumstances from which the conclusionFof guilt is to be drawn should in the first instance be fully established,and all the facts so established should be consistent only with thehypothesis of the guilt of the accused. Again, the circumstancesshould be of conclusive nature and tendency and they should besuch as to exclude every hypothesis but the one proposed to beGproved. In other words, there must be chain of evidence so farcomplete as not to leave any reasonable ground for conclusionconsistent with the innocence of the accused and it must be suchas to show that within all human probability the act must havebeen done by the accused.”

153. close analysis of this decision would show that the followingconditions must be fulfilled before case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra[7] where the observations were made:

“Certainly, it is primary principle that the accused must be andnot merely may be guilty before court can convict and the mentaldistance between ‘may be’ and ‘must be’ is long and divides vagueconjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty,

(3) the circumstances should be of conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute thepanchsheel of the proof of case based on circumstantial evidence.

155. It may be interesting to note that as regards the mode ofproof in criminal case depending on circumstantial evidence, inthe absence of corpus delicti, the statement of law as to proofof the same was laid down by Gresson, J. (and concurred by 3more Judges) in King v. Horry [1952 NZLR 111] thus:

7(1973) 2 SCC 793.

“Before he can be convicted, the fact of death should be provedby such circumstances as render the commission of the crimemorally certain and leave no ground for reasonable doubt: thecircumstantial evidence should be so cogent and compelling as toconvince jury that upon no rational hypothesis other than murdercan the facts be accounted for.”

156. Lord Goddard slightly modified the expression “morallycertain” by “such circumstances as render the commission of thecrime certain”.

157. This indicates the cardinal principle of criminal jurisprudencethat case can be said to be proved only when there is certainand explicit evidence and no person can be convicted on puremoral conviction...””

12.2. As regards inconsistencies and/or discrepancies in the versionof the witnesses, in the case of Shyamal Ghosh (supra) this Court hasexplained the distinction between serious contradictions and omissionswhich materially affect the prosecution case and marginal variations inthe statement of witnesses in the following terms: -

“68. From the above discussion, it precipitates that thediscrepancies or the omissions have to be material ones and thenalone, they may amount to contradiction of some seriousconsequence. Every omission cannot take the place of acontradiction in law and therefore, be the foundation fordoubting the case of the prosecution. Minor contradictions,inconsistencies or embellishments of trivial nature whichdo not affect the core of the prosecution case should not betaken to be ground to reject the prosecution evidence inits entirety. It is only when such omissions amount to acontradiction creating serious doubt about the truthfulness orcreditworthiness of the witness and other witnesses also makematerial improvements or contradictions before the court in orderto render the evidence unacceptable, that the courts may not bein position to safely rely upon such evidence. Seriouscontradictions and omissions which materially affect the case ofthe prosecution have to be understood in clear contradistinction tomere marginal variations in the statement of the witnesses. Theprior may have effect in law upon the evidentiary value of the

prosecution case; however, the latter would not adversely affectthe case of the prosecution.”

(emphasis supplied)

12.3. In the case of Bharwada Bhoginbhai Hirjibhai (supra),this Court has explained that concurrent findings of fact cannot bereopened in an appeal by special leave unless shown to be based on noevidence or inadmissible evidence or being perverse or suffering fromdisregard of some vital piece of evidence. In that case the finding ofguilt concurrently recorded by the Trial Court and the High Court waschallenged mainly on the ground of minor discrepancies in the evidencefor which, this Court emphasised that excessive importance cannot beattached to such minor discrepancies. This Court explained the reasonsincluding that witness cannot be expected to possess photographicmemory; witness is likely to be overtaken by events particularly ofunanticipated occurrence; the powers of observation differ from personto person; by and large people cannot accurately recall the conversationsor the sequence of events; and witness howsoever truthful is liable tobe overawed by the Court atmosphere and piercing cross-examinationetc. The following passage from this decision could be usefully extractedthus: -

“5……Their evidence has been considered to be worthy ofacceptance. It is pure finding of fact recorded by the SessionsCourt and affirmed by the High Court. Such concurrent findingof fact cannot be reopened in an appeal by special leave unless itis established : (1) that the finding is based on no evidence or (2)that the finding is perverse, it being such as no reasonable personcould have arrived at even if the evidence was taken at its facevalue or (3) the finding is based and built on inadmissible evidence,which evidence, if excluded from vision, would negate theprosecution case or substantially discredit or impair it or (4) somevital piece of evidence which would tilt the balance in favour ofthe convict has been overlooked, disregarded, or wronglydiscarded. The present is not case of such nature. The findingof guilt recorded by the Sessions Court as affirmed by the HighCourt has been challenged mainly on the basis of minordiscrepancies in the evidence. We do not consider it appropriateor permissible to enter upon reappraisal or reappreciationof the evidence in the context of the minor discrepancies

EFG

painstakingly highlighted by learned Counsel for theappellant. Overmuch importance cannot be attached tominor discrepancies. The reasons are obvious:

“(1) By and large witness cannot be expected to possessa photographic memory and to recall the details of an incident.It is not as if video tape is replayed on the mental screen.

(2) Ordinarily it so happens that witness is overtakenby events. The witness could not have anticipated theoccurrence which so often has an element of surprised.The mental faculties therefore cannot be expected to be attunedto absorb the details.

(3) The powers of observation differ from person toperson. What one may notice, another may not. An object ormovement might emboss its image on one person’s mind,whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall aconversation and reproduce the very words used by them orheard by them. They can only recall the main purport of theconversation. It is unrealistic to expect witness to be humantape-recorder.

(5) In regard to exact time of an incident, or the time durationof an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation.And one cannot expect people to make very precise or reliableestimates in such matters. Again, it depends on the time-senseof individuals which varies from person to person.

(6) Ordinarily witness cannot be expected to recallaccurately the sequence of events which takes place inrapid succession or in short time span. witness isliable to get confused, or mixed up when interrogatedlater on.

(7) witness, though wholly truthful, is liable to beoverawed by the court atmosphere and the piercingcross-examination made by counsel and out ofnervousness mix up facts, get confused regarding sequenceof events, or fill up details from imagination on the spur of the

moment. The sub-conscious mind of the witness sometimesso operates on account of the fear of looking foolish or beingdisbelieved though the witness is giving truthful and honestaccount of the occurrence witnessed by him — Perhaps it is asort of psychological defence mechanism activated on thespur of the moment.”

(emphasis supplied)

12.4. In the case of Gangadhar Behera (supra), this Court againhighlighted that the normal discrepancies in evidence are of naturaloccurrence in the Court, while observing as under: -

“15. Normal discrepancies in evidence are those which are dueto normal errors of observation, normal errors of memory due tolapse of time, due to mental disposition such as shock and horrorat the time of occurrence and those are always there howeverhonest and truthful witness may be. Material discrepancies arethose which are not normal, and not expected of normal person.Courts have to label the category to which discrepancy may becategorized. While normal discrepancies do not corrode thecredibility of party’s case, material discrepancies do so. Theseaspects were highlighted recently in Krishna Mochi v. State ofBihar [(2002) 6 SCC 81] .…..”

12.5. As regards the approach towards the appreciation of theevidence of closely related witnesses, in the case of Gangabhavani(supra), this Court has explained the principles as follows: -

“15…..It is settled legal proposition that the evidence of closelyrelated witnesses is required to be carefully scrutinised andappreciated before any conclusion is made to rest upon it, regardingthe convict/accused in given case. Thus, the evidence cannotbe disbelieved merely on the ground that the witnessesare related to each other or to the deceased. In the case theevidence has ring of truth to it, is cogent, credible and trustworthy,it can, and certainly should, be relied upon. (Vide Bhagaloo Lodhv.State of U.P.) [(2011) 13 SCC 206]”

(emphasis supplied)

12.6. In the case of Ramnaresh (supra), this Court has, thoughrecognised the right of the accused to maintain silence during investigation

Aas also before the Court in the examination under Section 313 CrPC but,at the same time, has also highlighted the consequences of maintainingsilence and not availing opportunity to explain the circumstancesappearing against him, including that of the permissibility to draw adverseinference in accordance with law. This Court observed and held as under:-

“49. In terms of Section 313 CrPC, the accused has the freedomto maintain silence during the investigation as well as before thecourt. The accused may choose to maintain silence orcomplete denial even when his statement under Section313 CrPC is being recorded, of course, the court would beentitled to draw an inference, including adverse inference,as may be permissible to it in accordance with law.

52. It is settled principle of law that the obligation to put materialevidence to the accused under Section 313 CrPC is upon theDcourt. One of the main objects of recording of statement underthis provision of CrPC is to give an opportunity to the accused toexplain the circumstances appearing against him as well as to putforward his defence, if the accused so desires. But once hedoes not avail this opportunity, then consequences in lawmust follow. Where the accused takes benefit of this opportunity,Ethen his statement made under Section 313 CrPC, insofar as itsupports the case of the prosecution, can be used against him forrendering conviction. Even under the latter, he faces theconsequences in law.”

(emphasis supplied)

12.7. The principles enunciated by this Court in regard to theobligation of explanation in terms of Section 106 of the Evidence Actand the consequences of want of explanation have been explained bythis Court in the case of Satpal (supra) as follows: -

“6. We have considered the respective submissions and theevidence on record. There is no eyewitness to the occurrence butonly circumstances coupled with the fact of the deceased havingbeen last seen with the appellant. Criminal jurisprudence and theplethora of judicial precedents leave little room for reconsiderationof the basic principles for invocation of the last seen theory as afacet of circumstantial evidence. Succinctly stated, it may be

weak kind of evidence by itself to found conviction upon the samesingularly. But when it is coupled with other circumstancessuch as the time when the deceased was last seen with theaccused, and the recovery of the corpse being in very closeproximity of time, the accused owes an explanation underSection 106 of the Evidence Act with regard to thecircumstances under which death may have taken place. Ifthe accused offers no explanation, or furnishes wrongexplanation, absconds, motive is established, and there iscorroborative evidence available inter alia in the form ofrecovery or otherwise forming chain of circumstancesleading to the only inference for guilt of the accused,incompatible with any possible hypothesis of innocence,conviction can be based on the same. If there be any doubt orbreak in the link of chain of circumstances, the benefit of doubtmust go to the accused. Each case will therefore have to beexamined on its own facts for invocation of the doctrine.”

(emphasis supplied)

12.8. In Satye Singh and Anr. v. State of Uttarakhand: (2022)5 SCC 438,where the prosecution failed to prove the basic facts asagainst the accused, this Court emphasised that Section 106 of theEvidence Act does not relieve the prosecution of its primary duty toprove the guilt of the accused as follows: -

“19. …the Court is of the opinion that the prosecution had miserablyfailed to prove the entire chain of circumstances which wouldunerringly conclude that alleged act was committed by the accusedonly and none else. Reliance placed by learned advocate Mr. Mishrafor the State on Section 106 of the Evidence Act is also misplaced,inasmuch as Section 106 is not intended to relieve the prosecutionfrom discharging its duty to prove the guilt of the accused….”

12.9. Apart from the above, we may also usefully take note ofthe decision of this Court in the case of Sabitri Samantaray v. State ofOdisha:2022 SCC OnLine SC 673. In that case based oncircumstantial evidence, with reference to Section 106 of the EvidenceAct, 3-Judge Bench of this Court has noted that if the accused had adifferent intention, the facts are specially within his knowledge which hemust prove; and if, in case based on circumstantial evidence, the accusedevades response to an incriminating question or offers response which

Ais not true, such response, in itself, would become an additional link inthe chain of events. This Court said, inter alia, as under: -

“19. Thus, although Section 106 is in no way aimed at relievingthe prosecution from its burden to establish the guilt of an accused,it applies to cases where chain of events has been successfullyBestablished by the prosecution, from which reasonable inferenceis made out against the accused. Moreover, in case based oncircumstantial evidence, whenever an incriminating question isposed to the accused and he or she either evades response, oroffers response which is not true, then such response in itselfbecomes an additional link in the chain of events.”

13.While keeping the aforesaid principles in view, and whilereiterating that wholesome reappreciation of evidence is not within thescope of this appeal, we may examine if the concurrent findings call forany interference in this case.

D14. few basic aspects are not of much controversy in this case,essentially based on circumstantial evidence. The husband of the appellantwas mostly living abroad and the appellant was mostly living with herparents at Kolakkudi. As per the version of the witnesses PW-1, PW-2and PW-3, who supported the prosecution case as also as per the versionof PW-6 Jamal Mohammed, father of the appellant, who did not supportEthe prosecution case and was declared hostile, this much remainsindisputable that on 18.06.2007, the appellant came with her father andwith her daughter to Perambalur from Kolakkudi. The victim child,daughter of the appellant, met with her homicidal death on 21.06.2007.

15. The major disputable part of the matter is that as per theFtestimony of PW-6 Jamal Mohammed, on 20.06.2007, he left the victimchild with PW-1 Basheera and went back to Kolakkudi with his daughter,that is, the appellant. According to the prosecution case, the appellantremained very much in Perambalur with the victim child and in the morningof 21.06.2007, she strangled the child when her mother-in-law (PW-1)Gwas out of the house. According to PW-6 Jamal Mohammed, the appellantwas not in Perambalur at the relevant point of time; and she came toPerambalur with him on 21.06.2007 in the late afternoon after receivinginformation about demise of the child and thereafter, she was arrested.Some of the other prosecution witnesses were also given the samesuggestions in the cross-examination. These aspects lead to the plea of

alibias has been referred to and relied upon by the learned counsel forthe appellant.

15.1. The Trial Court and the High Court have examined theevidence on record and have rejected this plea of alibi with reference tothe significant features of the case that there is no corroborative evidenceon record, to the assertion made by PW-6 Jamal Mohammed, that on20.06.2007, he took his daughter back to his village Kolakkudi. Theaccused-appellant did not adduce any evidence to prove that she wasnot present in Perambalur, at the time and place of incident. Apart fromthe fact that PW-1, PW-2 and PW-3 consistently maintained their versionsthat the appellant was available at the time and place of incident, twoindependent witnesses, PW-4 Sharfunisha, landlord of PW-1 and PW-5Thiru-Jothi, neighbour of PW-1 testified that they saw the appellant sittingwith or near the body of the deceased child immediately after, and at theplace of, the incident. Although there appears to be no reason to discardthe testimonies of PW-2 and PW-3 but even if for the sake of argumenttheir testimonies are left aside for being directly related witnesses whomight not be favourably disposed towards the appellant, there appearsno reason to disbelieve and discard the testimonies of PW-4 and PW-5.Nothing even remotely has been shown as to why PW-4 and PW-5would be interested in testifying about the presence of appellant aroundthe time, and at the place of incident.

15.2. Apart from the foregoing, fact of the matter also remainsthat the appellant was arrested on 21.06.2007 i.e., the very day of theincident, albeit nine hours after the incident, at the bus stand. However,when the theory propounded by PW-6 Jamal Mohammed that theappellant had travelled to Kolakkudi with him on 20.06.2007 and thentravelled back to Perambalur on 21.06.2007 is discarded, all other factstaken together lead to the logical conclusion that the plea of alibi is requiredto be rejected.

16. Another major factor highlighted and elaborated by the learnedcounsel for the appellant relates to certain discrepancies appearing inthe versions of PW-1 Basheera, as stated in the complaint made to thepolice compared with her assertions before the Court. No doubt, therehad been some such discrepancies in the matter which, at the first blush,give rise to certain doubts as to whether the testimony of PW-1 could bebelieved or not. However, close look at the record makes it clear thatthe discrepancies, said to be of contradictions in the versions given by

APW-1 Basheera, could only be considered to be normal and natural orbeing the result of her want of proper comprehension.

16.1. PW-1 Basheera is none other than mother-in-law of theappellant and the grand-mother of the victim child. The first discrepancyin the matter is that, as per the version in the complaint, she left herBhouse in the morning to buy idli without taking money, but in her deposition,she stated that appellant gave her Rs. 100 and asked her to get idli.Another major discrepancy surfaces when it is noticed that in thecomplaint, she asserted that the appellant ran away from the scene ofoccurrence but in her deposition, she stated that the appellant was takento the police station. Thirdly, what she saw and did upon reaching theChouse after visiting the market is also stated differently in the complaintand in the deposition. The question is as to whether her testimony andthe prosecution case be rejected altogether because of thesediscrepancies.16.2. In our view, the Trial Court has rightly analysed the matterDand has rightly observed that when PW-1, sixty-five years of age, wasdeposing before the Court from her memory after one year from theincident, such discrepancies would not result in rejection of her testimonyaltogether. The relevant features emanating from her assertions in thecomplaint as also in the statement are that she had gone out to purchaseEeatables in the morning while leaving the victim child with the appellant;and after coming back, found the child dead, with the appellant beingwith the child. As to whether she had gone to the market after beinggiven money by the appellant or without taking money, in our view, cannotoverride entire of her testimony as also the testimonies of other witnesses.Further, the said witness PW-1 seems to have obviously lost the track ofFfacts when she asserted in her deposition that the appellant was taken tothe police station after the incident. It has clearly been established onrecord that the appellant was arrested in the late afternoon at the busstand and it has nowhere been shown if she was taken to the policestation immediately after the incident. suggestion made in that regardGto the official witness PW-10 Subbulakshmi has also been specificallydenied by her. The said discrepancy in the version of PW-1 is also of norelevance and the concurrent findings of the two Courts cannot bedisplaced on that count. Even the version given in the complaint as ifPW-1 saw the appellant strangling her child seems to be an overt assertionimmediately after the incident. The other witnesses who had reachedH

the scene of crime including the independent witnesses PW-4 and PW-5 have consistently maintained that the appellant was available with thedead body of the child at the place of, and immediately after, the incident.

16.3. Taking an overall view of the matter, we do not find anyreason that entire prosecution case be disbelieved and discarded becausePW-1 has not projected the case in consistent manner. Apart from theprivate witnesses, all the relevant facts have been duly established in thetestimonies of the official witnesses too. The discrepancies as noticed inthe present case, at the most, could be said to be of minor contradictionsor inconsistencies or embellishments of trivial nature; and are reasonablyreferable to the reasons recounted by this Court in BharwadaBhoginbhai Hirjibhai (supra) for which, the minor discrepancies dooccur in evidence and excessive importance cannot be attached to them.

17. The submission that the assertion about the appellant havingstrangled the victim, by pressing her saree around the neck, does notcorrelate with the post-mortem examination is also untenable. As noticed,the medical officers have clearly established that the child sufferedstrangulation with wound measuring 20 cm in length and 2 cm in breadtharound the neck and with thyroid cartilage bone having been fractured.PW-8 also opined that if outer end of the saree was twisted and putaround the neck and the person was strangled, there was chance ofsuch wound. The saree in question had been duly recovered from theappellant and was said to be carrying blood stains.

18. In the given set of facts and circumstances, the motive assuggested by the prosecution, i.e., the desire of the appellant not to livein her matrimonial house and, on being forced to do so only because ofthe child, she being not interested in the existence of the child, thoughpresents somewhat difficult proposition but, at the same time, cannotbe ruled out altogether, particularly looking to the fact that, until18.06.2007, the appellant was living with her parents and she was forcedto come to Perambalur for the purpose of upbringing of the child withthe family of her husband.19. Another submission made on behalf of the appellant, that herhusband has not been examined by the prosecution, does not take hercase any further. Her husband was not shown to be in the country at thetime of incident and he was not direct witness in relation to the materialfacts to be established by the prosecution. Other way round, if at all the

Aappellant considered him to be material witness, nothing prevented herfrom making prayer to the Court for his examination and nothingprevented her from making specific submissions in that regard duringher examination under Section 313 CrPC.

20. As regards the statement under Section 313 CrPC, the appellantBhas not given any explanation whatsoever and has not made anystatement except denying the circumstances put to her. In the facts ofthe present case, when the prosecution evidence categorically establishedthe fact that the victim child was last seen alive with the appellant only;she was required to explain the circumstances leading to the demise ofthe child. Upon her failure to do so and failure to give the explanationCwith regard to the circumstances under which death may have takenplace, burden of Section 106 of the Evidence Act operates heavily againstthe appellant, as noticeable from the decisions above referred, particularlyin the cases of Satpal and Sabitri Samantaray (supra).

21. In an overall comprehension of the material on record and theDfindings recorded by the Trial Court and the High Court, in our view, nocase for interference with the concurrent findings of fact is made out.

22. The submissions made in the alternative that in the given setof circumstances, the present case could only be of culpable homicidenot amounting to murder has only been noted to be rejected. Even if it beEtaken that there was quarrel of the appellant with her mother-in-law(PW-1) in the morning of the date of incident because the appellantwanted to go the place of her father, it cannot be said that such quarrelwould make it case of grave and sudden provocation. The circumstancesas proved on record, and the manner of commission of crime, make itFclear that the present case cannot be brought under any of the Exceptionsof Section 300 IPC; and conviction and sentencing of the appellant underSection 302 IPC cannot be faulted.

23. In view of the above, this appeal fails and is, therefore,dismissed.

Ankit Gyan

Appeal dismissed.

(Assisted by : Keya Philomena Rebello and Mahendra Yadav, LCRAs)