VAHITHA VERSUS STATE OF TAMIL NADU

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 762 OF 2012

VAHITHA …………..APPELLANT(S)

VERSUS

STATE OF TAMIL NADU ..…..RESPONDENT(S)

JUDGMENT

DINESH MAHESHWARI, J.

1. This appeal by special leave is directed against the judgment and

order dated 09.03.2010 in Criminal Appeal No. 1 of 2010, whereby the High

Court of Judicature at Madras has dismissed the appeal against the

judgment of conviction and order of sentence dated 15.10.2009, as passed

by the Sessions Judge, Mahila Court, Perambalur in Sessions Case No. 9

of 2008, holding the appellant guilty of the offence punishable under

Section 302 of the Indian Penal Code, 18601 and awarding her the

punishment of imprisonment for life and fine of Rs. 2,000/- with default

stipulations.

‘IPC’, for short.

2. In a brief outline, it could be noticed that in this case, the appellant

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 morning of 21.06.2007.

According to the prosecution case, the appellant’s husband was living

abroad for earning livelihood and the appellant was mostly living with her

father at Kolakkudi. However, on being forced to live with her mother-inlaw for the purpose of upbringing and education of the child, she found the

child to be an obstacle in her desire to live separate and hence,

strangulated the child to death when her mother-in-law had gone out of the

house. It was alleged that the appellant was last seen with the child and

after having killed the child, when her mother-in-law and other witnesses

reached the scene of crime, she ran away and was apprehended in the late

afternoon at Perambalur New Bus Stand. As per the post-mortem report,

the cause of death of the child was asphyxia because of strangulation. In

the trial, all but one prosecution witnesses supported the accusations

against the appellant. Only the father of the appellant deposed to the

contrary and asserted that at the relevant point of time, the appellant was

with him at Kolakkudi and he accompanied her to Perambalur after

receiving information about death of the child. After appreciation of

evidence, the Trial Court, in its judgment dated 15.10.2009, rejected the

plea of alibi taken on behalf of the accused-appellant and held proved that

the victim child died of asphyxia because of strangulation and was last seen

alive with the appellant, who failed to explain the circumstances in which

the child died. Hence, the appellant was convicted of the offence

punishable under Section 302 IPC and was sentenced accordingly. In

appeal, the High Court concurred with the findings of the Trial Court while

holding that the ingredients establishing culpability of the appellant were

clearly established on record.

2.1. In this appeal, the concurrent findings of the two Courts have been

questioned essentially with reference to certain discrepancies in the

version of the prosecution witnesses and on the ground that the

prosecution has failed to establish a chain of cogent circumstances which

could lead to the only hypothesis that the appellant had killed her own child.

These submissions have been countered with reference to the evidence of

the prosecution and findings of the two Courts.

3. Having regard to the submissions made and the questions arising

for determination, we may take note of the relevant factual and background

aspects as follows:

3.1. In this case, the First Information Report2

, bearing No. 328 of 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-in-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 been scribed

by PW-10 Subbulakshmi, SI, Perambalur, read as under:3

“…As my grand daughter is 5 years old, my son had spoken from

Riyat to Kolakkudi and said that she has to go to Perambalur and

‘FIR’, for short.

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

stay in my house and educate the child. Hence, Vahida was brought

by her father on 18.6.07 along with grand daughter Farhana and

dropped in my house at Perambalur. For two days after her arrival

she did not properly have the food and also did not speak to me

properly and my daughter-in-law Vahida picked up quarrel with me

and was telling me that she is going to Kolakkudi. As I had warned

her not to go to Kolakkudi, she was telling that only because of this

child, I could not live peacefully. My husband is suspecting me. You

are also not allowing me to go to Kolakkudi. Only if I finish off this

child, I shall live peacefully. I, my daughter Mumtaz, my 2nd

daughter-in-law Asha, and the Kamala, my neighbour together had

warned her on the night of 20.6.2007. On 21.06.2007 at 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 to go to Kolakkudi.

Hence, there was a quarrel picked up between me and my

daughter-in-law Vaheetha. I told her let us see and went to get the

idli. By that time, my daughter Mumtaz and my daughter-in-law

Asha came to see me. I being left the home for buying idli without

taking money went along with them came to house to take the

money. By that time my daughter-in-law Vaheetha, was tying the

neck of my grand daughter Farhana who is aged five years with the

outer end of a saree (mundanai) portion of her saree and was

holding it tight. After seeing this I shouted why are you killing my

grandchild. Besides, holding my grandchild’s neck with the saree

and killing her, she had pushed us and ran away through the

entrance. The neighbours Kamala and Jayaraman came running

there, after hearing my scream. I touched the child. She was

dead…”

3.2. After registration of the FIR (Ex.P10), PW-12 Thiru G. Ayyanar, the

first Investigating Officer4

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 dead body was sent for

post-mortem examination. As per the post-mortem report (Ex. P5), there

was a wound around the neck of the victim child measuring 20 cm in length

and 2 cm in breadth; and victim died due to asphyxia because of

strangulation.

‘IO’, for short.

3.3. According to the first IO, PW-12 Thiru G. Ayyanar, the appellant

was arrested at about 5.00 p.m. near a ladies washroom at the Perambalur

New Bus Stand, i.e., approximately nine hours after the occurrence. It was

alleged that after her arrest, the appellant identified the saree by which the

child was strangulated; that the saree allegedly carrying blood-stains was

seized in the presence of attesting witnesses; and that following her arrest,

the appellant made a confessional statement that was recorded by PW-12

in the presence of witnesses. Later on, the investigation was taken over by

PW-14 D. Sivasubramanian, who filed the charge-sheet for the offence

under Section 302 IPC against the appellant. After committal, and upon

denial of charge by the appellant, the case was tried as Sessions Case No.

9 of 2008 by the Sessions Judge, Mahila Court, Perambalur.

4. In trial, a total of fourteen witnesses were examined by the

prosecution. The first witness PW-1 Basheera, mother-in-law of the

appellant and the informant, was examined as the key witness related with

the occurrence. Four other witnesses, PW-2 Mumtaz, daughter of PW-1;

PW-3 Asha Begum, other daughter-in-law of PW-1; PW-4 Sharfunisha,

landlord of PW-1; and PW-5 Thiru-Jothi, neighbour of PW-1 were claimed

to be the witnesses who reached the scene of crime immediately after the

occurrence. PW-8 Dr. Saravanan and PW-13 Dr. Karthikeyan A. testified

respectively to the post-mortem report and the report with respect to the

thyroid cartilage bone of the victim child. PW-9 Devaraj, Village

Administrative Officer and PW-7 Sadiq Ali were examined as attesting

witnesses related with the process of investigation. PW-10 Subbulakshmi

had recorded the statement of PW-1 and scribed the FIR whereas PW-11

Mohammed Munwar Khan was the photographer who had taken

photographs at the scene of occurrence. As noticed, PW-12 Thiru G.

Ayyanar carried out the initial investigation whereas PW-14 D.

Sivasubramanian, SI, Perambalur completed the investigation and filed

charge-sheet. Apart from these witnesses who supported the prosecution

case, there had been another witness PW-6 Jamal Mohammed, father of

the appellant, who stated to the contrary and asserted that the appellant

was with him at his village Kolakkudi. In other words, this witness supported

the appellant’s plea of alibi.

5. Though elaboration of the entire prosecution evidence is not

necessary for the purpose of the present appeal, but having regard to the

contentions urged, we may take note of the relevant part of depositions,

particularly in reference to certain inconsistencies/discrepancies in the

assertions of the prosecution witnesses as also in reference to the

appellant’s plea of alibi.

5.1. PW-1 Basheera has been the key witness for the prosecution. In

her testimony, she stated that her son Abdul Raheem had married the

appellant; that a female child was born to the appellant after the marriage;

and that Abdul Raheem was sending all the money earned by him to the

appellant. She further stated that Abdul Raheem had called her to say that

his daughter should be admitted in a school in Perambalur and he would

send her money for that purpose; and subsequently, on 18.06.2007, PW-6

Jamal Mohammed, father of the appellant, dropped the appellant and the

child to the house of PW-1 with request to educate the child in Perambalur

since Abdul Raheem was allegedly not sending the appellant any money.

She stated that on the morning of 21.06.2007, the appellant gave her Rs.

100 and asked her to buy idli; that when she came back to the house, the

appellant was sitting silently next to the child; and that upon asking, the

appellant told her that she had killed the child. During cross-examination,

this witness stated that she went to the police station with the appellant

immediately after the occurrence. The relevant parts of her statement read

as under: -

“……About 10 months ago, 18th day of 6th

month, my daughter-inlaw’s father Jamal Mohammed had brought his daughter, the

margin accused and our grand child to my house at Perambalur. My

daughter-in-law’s father was telling his daughter, the margin

accused, that on the next day, 19th he would be leaving to his village

and she has to take care of everything. The margin accused told

her father that she would take care. On the next day 19th, the

accused’s father went back to his village. On the next day to that,

on 20th Wednesday we cooked and had our food and were available

in the house of my daughter Mumtaz. ….. I am residing separately

after 4 or 5 houses from her house. (the witness repeats the same.)

I told the margin accused to come to my house along with her

daughter and we would admit the grand daughter in school. The

accused said OK for the same and on that day Wednesday, night,

I, the accused and the grand daughter Farhana three of us went to

the house wherein I am staying as a tenant for our sleep. In the

morning of the next day, at about 6.00 A.M. I went to get the society

milk. … I bought the milk and made tea and gave to her. Thereafter

I told her that I would get meat. For that the margin accused 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 to Farmers’ market.

It took some time. By that time I got the change for Rs.100/- and got

the idli and came back to home. On the same day, i.e. 21st at 6.00

A.M. my son Abdul Raheem had called my daughter Mumtaz from

abroad. The said information was given to me by my daughter

Mumtaz on the way to home after getting the idli, as the house of

my daughter Mumtaz is situated on the way….. I bought the idli and

went to my house. The tea which was kept by me in a glass was

there as it is. That tea was kept by me for my grand daughter. It was

there as it is. By that time the accused Vahida was sitting near my

grand daughter who was lying there. I told the details given by

Mumtaz to me and asked her to wake up grand daughter and give

her the tea. For that the accused was sitting quiet. When I was

telling the accused about the admission of my granddaughter into

school and she has to talk to my son Abdul Raheem over phone,

the accused asked me where is the police station. I asked the

accused, “What I am telling you. What you are asking me.” For that

the margin accused said that she had killed her daughter. I told her,

“none of the mother who gave birth to a child will kill the child. You

are telling lie”. For that 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 Begum both of them came into my house. Again I told the

accused “You are telling lie.” And asked her to wake up the child.

But again the accused said that she had killed the child, I shook the

head of my grand daughter. There was blood out of my grand

daughter’s nose. My grand daughter Farhana was dead. When I

saw that my grand daughter was dead and came out shouting, as

said by me earlier, my daughter Mumtaz, my middle daughter-inlaw Asha begum came there. The people also gathered. I had

giddiness. They took me to the neighbouring house and made me

to sit there. Anwar Basha had made phone call. Police authorities

came to our house. They called me to the police station and asked

me. I told them all that had transpired. The police authorities

recorded the same. I had affixed my left thumb impression in the

same. That was shown to me. When the witness was shown the

complaint dated 21.6.2007 and asked about the same, as the

witness had accepted the same the above said complaint had been

marked as Ex.P1. ….. The accused told me that she had put the

saree outer end of a saree (mundanai) around her neck and

murdered her. When the police authorities 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. After the police authorities came, seeing that the child was

dead, the police authorities brought me and the margin accused,

my daughter-in-law to the police station. I had deposed the same

particulars that I had deposed in the chief examination, in the police

station also. If anyone call loudly in front of my house, it would be

heard by the persons in the house of my daughter Mumtaz. My son

Shamsudeen and his wife Asha Begum both were staying in a

house in some other street. When I bought idli and came back, Asha

Begum and Shamsudeen were not available in the house of my

daughter Mumtaz……. If it is said that as we did not take any steps

to admit our grand daughter in the school, on 20th morning the father

of the accused had left our grand daughter Farhana in our house

and left for Kollakudi village, it is incorrect. When I saw the child was

dead and when I came out of the house and shouted at about 10 or

15 feet distance, Mumtaz and Asha Begum were coming. The name

of my house owner is Majid. I was residing in a portion of the portico

which was covered with asbestos sheet. It has only one door. As

the place wherein I resided is a portico, there are no windows. When

I got the idli and came back, the door of the house was closed tight.

I had knocked it strongly and opened. …. It is incorrect to state that

I had not deposed during the police investigation that on the next

day at 6.00 A.M. I went to get the society milk and brought the milk.

It is incorrect to state that I had not deposed during the police

investigation that after making the tea and giving it to my daughterin-law the margin accused gave me Rs.100/- to get idli and that I

went to the farmer's market to get the idli and when I got the idli and

was coming back, through my daughter Mumtaz she said that Abdul

Raheem spoke to my daughter Mumtaz over phone. It is incorrect

to state that as deposed during my chief examination, I did not

mention in the complaint statement as well as during the police

investigation, that when I came back the tea which had been kept

for my grand daughter was as it is, and that when I asked the

accused, why she did not wake up granddaughter and give her the

tea, she was sitting quiet, and that when I asked again the accused

said that she had killed the child. … My eldest son Jamal

Mohammed and my another son Shamsudeen, alone were sending

money to be from abroad. It is incorrect to state that as Abdul

Raheem did not take care of me, after his marriage, I am angry with

him. It is incorrect to state that in the event that my son Abdul

Raheem and the accused did not take care of me, they had handed

over my grand daughter Farhana to me. If it is said that on account

of this anger, I and my daughter Mumtaz colluded and murdered my

grand daughter, it is false. If it is said that Shamudeen who came

from abroad had given the money and by using his influence, had

used me and made a false case to be filed against the accused, all

of them are wrong. If it is said that after hearing the news of the

child's death, the accused who came to Perambalur at 5.00 P.M.

from Kollakudi Village, was taken by all of us and handed over to

the police, all are incorrect.”

5.2. The testimony of PW-2 Mumtaz, daughter of PW-1, assumes

relevance in view of her close connectivity with the occurrence, as asserted

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 21st day of June, 2007. Two days earlier, the

accused and her daughter stayed at Perambur as guests. My

mother is residing separately in a house which is away slightly from

my house. By that time, along with my mother, the margin accused

and her daughter were staying when they came to Perambalur. The

accused and her daughter were residing in my mother’s house

separately. On the date of incident, between 7.30 to 8.00 A.M. my

mother went to get idli. When my mother got idli and went home,

my mother shouted. People gathered there. We went to that place.

I saw that the accused’s daughter was dead…..When I asked

margin accused, she said that she had killed the child. (The witness

once again said this). At about 7.00 A.M. on that day, my younger

brother Abdul Raheem had called me over phone and said that

Vahida i.e. the margin accused should not go anywhere and that

the accused’s daughter has to be admitted in the school. My

younger brother Abdul Raheem told me over phone that I have to

tell the accused to admit the school in Perambalur and to stay along

with my mother. When my mother got idli and came back, I told the

details as said by my younger brother, Abdul Raheem over phone.

My younger brother told me over phone to bring the margin accused

and keep her in my house and before I could do the same, the

incident had taken place. When I saw, Farhana was dead with the

blood coming out of the nose and mouth. When the police

authorities examined me, I deposed the above details. That is all.

Cross Examination: After my mother got idli she shouted within

5 minutes. 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 was silent and this had been deposed by me in the chief

examination and the same had not been deposed during the

investigation by the police authorities. I did not depose during the

investigation by the police authorities about the phone call from

Abdul Raheem at 7.00 A.M. on that day, and the details of

conversation and also about my informing the same to my mother,

as I had deposed in my chief examination…. After the marriage the

accused and her husband did not have smooth relationship with my

mother. In these circumstances, if it is said that the accused had left

her daughter for educating her in my mother’s house and on 20th

she went to Kolakkudi Village they are all false. The reason for the

death of the child who had been left as such is me and my mother,

they are all false.”

5.3. PW-3 Asha Begum, the other daughter-in-law of PW-1, also

allegedly reached the scene of occurrence at the relevant point of time.

She allegedly asked the appellant as to why she killed the child but the

appellant did not answer. During her cross-examination, this witness

mentioned that she was not speaking to the appellant for four years prior

to the occurrence. The relevant parts of her statement read as under: -

“….The margin accused had a daughter by name Farhana. She

died on 21.6.2007. On the date of incident, the accused, her

daughter 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 the house

of my mother-in-law. My mother-in-law was residing in a house 5

houses away from my house. When I went there and saw, the child

of the accused was instable. One nurse came and saw the child and

confirmed that the child was dead. My sister-in-law Mumtaz had

said accused “Why did you do like this. If you do not like the child,

you would have left her with me” and she was beating on her head.

I also asked the accused “You are an educated woman. Isn’t it?

Why did you kill the child” and shouted at her. The accused did not

speak anything. When the police authorities examined me, I

deposed the above said particulars. If it is asked who is the cause

for the death of Farhana, her mother is the sole reason. That is all.

Cross-examination: I had deposed the facts which had been said

by me in the chief examination, during the police investigation also.

On the date of incident, my husband came from abroad for his

holidays. I and the margin accused are not speaking with each other

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 accused Abdul

Raheem is not sending money to her and that he is also not calling

her over phone, and that she wanted to educate her child Farhana.

My husband asked the margin accused keeping silent for 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, asking the accused after seeing

the dead body of the child, during the police investigation. It is

incorrect to state that the accused is not the cause for the death of

Farhana and that as there is no contact between me and the

accused for the past four years, I am adducing false evidence

against the accused. As the accused did not come to us, there is no

contact between us.”

5.4. PW-4 Sharfunisha, the landlord of PW-1, deposed that when she

came back to her house, she saw the child with the appellant. The witness

also claimed that she heard the appellant admit that she had killed the child.

The relevant parts of her statement could also be reproduced as under: -

“… P.W.1 Basheera is residing in a portion of our house. At the time

of the incident, the margin accused came as a guest to Basheera’s

house. Only then I came to know her. Before that, I do not know the

margin accused. The margin accused came with her 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 to school by bus went

near to Perambalur Farmers market and came back to my house,

after sending my child. People were talking there that the accused

had killed her child. When I saw that child, the margin accused was

there. She said the crowd that she had killed her child by straggling

with her saree outer end of a saree (mundanai) around her neck. I

was there at that time. When the police authorities examined me I

deposed the above particulars.

Cross Examination: Basheera is residing in our house as a

tenant with the monthly rent of Rs.350/- for the past two years. It is

incorrect to state that I did not depose during the police investigation

that 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 the

police authorities that the accused had said the crowd that she

straggled the child with her saree outer end of a saree (mundanai).

It is incorrect to state that I do not know the accused and that I had

not seen the accused on the date of the death of her child. It is

incorrect to state that as Basheera is our tenant, I am adducing false

evidence.”

5.5. PW-5 Thiru-Jothi, neighbour of PW-1, testified to have seen the

appellant for ten minutes, when the appellant was sitting near the body of

the deceased child. Her deposition could also be usefully reproduced as

under: -

“My name is Jothi. My father’s name is Veerasamy. I am residing at

Perambalur. Witness Basheera is residing in the house next to our

house. About 4 or 5 months ago, one day on the date of death of

the child, I had seen the accused for 10 minutes. The margin

accused’s child had passed away on that day. Only on the date of

the death of the accused’s child, I had seen the margin accused

when she was sitting near the dead body of the child in the house

wherein witness Basheera was staying. By that time, it would be

around 8 or 8.15 A.M. P.W.1 Basheera was crying and said the

mother who gave birth to the child itself had murdered the child. I

told her to go to the police station and not to do anything else. I told

this at the time of police investigation.

Cross-examination: It is incorrect to state that I had not deposed

the details as mentioned in the chief examination, during the police

investigation. It is incorrect to state that I am adducing false

evidence.”

5.6. As noticed, the prosecution examined two medical officers as

regards post-mortem examination of the dead body of the victim child who

testified to the injuries noticed on the dead body and as regards the cause

of death. PW-8 Dr. Saravanan testified that there was a wound measuring

20 cm in length and 2 cm in breadth around the neck; and the thyroid

cartilage bone was fractured, which was consistent with strangulation. He

also opined that if outer end of a saree was twisted, put around the neck

and strangled, there was a chance of such wound to the child. During

cross-examination, he deposed that the wound would be more than 2 cm

if a saree was tied around the neck. However, in re-examination, he

clarified that the wound could be less than 2 cm if the saree was completely

twisted in small measurement. PW-13 Dr. Karthikeyan A. has been the

doctor who gave the report in respect of the thyroid cartilage bone. As per

his examination, the fracture of the thyroid bone was ante-mortem and

there was a chance that it was caused due to strangling. However, during

cross-examination, he stated that if the neck is strangled using a saree,

there is a less likelihood of marks. The fact that the victim child died due to

asphyxia because of strangulation is as such not a matter of dispute and

hence, we need not elaborate on these testimonies.

5.7. As regards the police personnel related with this matter, PW-10

Subbulakshmi, Sub-Inspector of Perambalur, recorded the statement of

PW-1 and scribed the FIR. She deposed that at around 9:00 am, PW-1

came to the police station to file a complaint. During cross-examination,

she clarified that PW-1 had not deposed in her original complaint that she

had come out of her house and shouted after realising that the child was

dead and had not brought the appellant to the police station immediately

after the occurrence. She also denied the suggestions in the crossexamination that she visited the place of occurrence at 8:00 a.m. and

brought the witnesses as also the appellant with her to the police station.

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 station and

had deposed the complaint and I recorded the same in writing. After

deposing the complaint, I had read out the statement to Basheera.

As she said that it was as deposed by her, and as she said that she

did not know to sign, I had obtained her left thumb impression in the

complaint…

Cross Examination:…In the complaint that had been deposed to me

it had not been indicated that after the incident was over, the margin

accused was brought by the complainant Basheera to the

Perambalur Police Station. When Basheera deposed, Anwar Basha

was with her.… The witness Basheera did not depose in the

complaint that after seeing that the child was dead, Basheera came

out of the house, and shouted and thereafter the witnesses Mumtaz

and Asha Begum came there. Basheera did not depose in 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 milk and

came on the way she met her daughter Mumtaz at her house and

talked to her. The witness Basheera did not depose in the complaint

that after coming to house, the accused had given Rupees one

hundred for getting idli and that she had taken the same and went

to the farmer's market to get idli. The witness Basheera did not

depose in the complaint that after she came to the house, the house

door was locked and she had knocked the door and opened the

same. If it is said that after coming to know of the incident, I went to

the place of incident at 8.00 A.M. itself and I had brought the

witnesses, Basheera, Mumtaz and Asha Begum to the police

station, they are all incorrect. If it is said that at that time, I had taken

the margin accused along with the above said witnesses, it is also

incorrect…”

5.8. PW-12 Thiru G. Ayyanar was the first IO in the case. He stated to

have received the FIR at 10:15 a.m. on 21.06.2007 and commenced the

investigation. For the purpose, he went to the place of incident and

examined a few witnesses; prepared the mahazar; and seized the articles

like mat and pillow. He also stated to have arrested the appellant at

Perambalur New Bus Stand and having recorded her confessional

statement in the presence of witnesses. He further stated to have seized

the saree said to have been used in the offence. The relevant parts of his

testimony read as under:

“…On the same day at about 17.00 hours, I had arrested the

accused Vahida in the Perambalur New Bus Stand. I had examined

the margin accused and recorded her confession statement before

the witnesses Devaraj and Parameswaran. The margin accused

said in her confession statement that she had killed the child by

strangling her neck with the saree which she was wearing. The

admitted portion of the confession statement had already been

marked as Ex. P9. As per the confession statement, the saree which

she was wearing was seized by me with the assistance of the lady

police under the mahazar. The mahazar for the same was the one

shown to me. That had already been marked as Ex. P8. The saree

which was seized by me is the one shown to me. That had already

been marked as M.O.3. ….

Cross-Examination: In Ex.P8 Mahazar, it had been indicated that

through the Sub-Inspector, Subbulakshmi the accused was given

the 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 New Bus

Stand only. In the last portion of the confession statement, it had

not been mentioned that the sub-inspector Subbulakshmi was sent

to get the alternate saree. It had been indicated that the lady police

had been sent and the alternate saree was brought… The evening

newspapers which are published in Perambalur would come at 5.00

P.M. If it is said that in the Maalai Malar newspaper dated

21.6.2007, which had been circulated at 5.00 P.M. on that day, it

was indicated that the accused of this case had been arrested, I do

not know of the same. I did not give such a news. If it is said that in

the same newspaper, the news stating that the police authorities

are conducting the investigation to witness Basheera, I do not know

of the same. The witnesses Basheera and Mumtaz had deposed

that after the incident was over, the margin accused ran from the

house. If it is said that in the circulation of Dinakaran and Dinamalar

newspapers, it had been indicated that after the incident was

concluded, the mother of the child was lying down near the child, I

do not know of the same. It is incorrect to state that after the death

of the child the margin accused had ran away from the house and

that we had published the news falsely stating that the margin

accused was lying near the deceased child. It is incorrect to state

that the witnesses Basheera, Mumtaz and Ashabegum had

deposed during my investigation that they had seen that the child

was dead. It is incorrect to state that on 20.6.2007 itself, the margin

accused had left her female child to the witness Basheera, and she

went to Kolakkudi Village on the same day. It is incorrect to state

that on 21.6.07, the accused who was in Kolakkudi village had the

information that her child was dead and that she came to

Perambalur by bus and when she got down, I had arrested her….”

5.9. PW-14 D. Sivasubramanian had been the other police officer who

carried out the later part of investigation, recorded the statements of other

witnesses and then filed the charge-sheet. For the present purpose, we

need not elaborate on the testimony of this witness or the other witnesses

who had been a part of the investigation including the photographer and

the attesting witnesses.

5.10. However, the testimony of PW-6 Jamal Mohammed, father of the

appellant, assumes relevance in the present case, particularly when he did

not support the prosecution version and deposed in support of the plea of

alibi as taken by the appellant by asserting that he had left the child with

PW-1 on 20.06.2007; had taken the appellant with her to Kolakkudi village,

and the next day, he came to Perambalur with the appellant after getting

information about demise of the child, when the appellant was arrested at

the bus stand. This witness was treated as a hostile 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 usefully reproduced as under: -

“….On 16.6.2007, I had called Shamsudeen who came from foreign

country over phone. He asked me to come on Monday. On 18th I

took my daughter, the margin accused and my granddaughter

Farhana and went to the house of Shamsudeen. I talked to

Shamsudeen that if leave the child in Perambalur for education and

if she is in their protection, Abdul Raheem would be sending the

money. Shamsudeen asked me to tell this to his mother. I went

there and told that. She asked me to tell the same to 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-inlaw’s mother asked me to leave her grand daughter Farhana alone

and take my daughter along with me. On 20th Wednesday at 6.00

P.M. I took my daughter alone and went to Kolakkudi Village. The

next day morning we got the information over phone that the child

Farhana was dead. We came to Perambalur. They had arrested my

daughter. My son-in-law Abdul Raheem is not sending the sufficient

money. In these circumstances, this witness had been treated as

hostile witness by 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 Abdul

Raheem did not send the money properly and manage the family,

we dropped his child in Perambalur. No one said us to go to

Perambalur. We ourselves went to the eldest son of the family

Shamsudeen. As no one had responded at Perambalur we did not

take steps to take the child again to Kolakkudi. As she i.e. my sonin-law’s mother asked to leave the child and go, we had left the child

and went from there. I was working in foreign country earlier. At

present I am running the poultry shops business. If it is said that I

had deposed during police investigation, that my daughter margin

accused used to tell me that she is going to mother-in-law’s house

and hospital, and was going in a wrong way, it is not correct. The

police authorities did not examine me. If it is said that the margin

accused was not staying in my house properly and that the conduct

of the accused is not good and that if the same is revealed out it will

spoil the prestige of my family, and hence I did not reveal it, they

are all incorrect. If it is said that during the police investigation, I had

deposed that my son-in-law who came to know all these details, had

called over phone and told me to drop the margin accused and his

child in the house of witness Basheera, they are all incorrect. It is

incorrect to state that during the police investigation I had deposed

that thereafter I had taken the margin accused and her child and

dropped them in the house of witness Basheera. If it is said that

during the police investigation, I had deposed that when I dropped

them and started to leave Permabalur, the accused told me that she

could not stay in Perambalur and that she will be coming soon to

me and that I had advised her to do as said by the accused’s

husband and I left from there, they are all incorrect. If it is said that,

during the police investigation I had deposed that on the next day, I

came to know over phone that my daughter, the margin accused

had killed my grand daughter Farhana and that thereafter I came to

Perambalur and saw my granddaughter who was dead and that the

accused had ran away, they are all incorrect. If it is said that, during

the police investigation I had deposed that as the accused could not

act as per whims and fancies at Perambalur, the accused had killed

her child, it is incorrect. It is incorrect to state that as the accused is

my daughter, I am adducing false evidence.”

5.11. In her examination under Section 313 of the Code of Criminal

Procedure, 19735

, the appellant denied all the allegations made against

her as false.

6. With the aforesaid status of record, the Trial Court heard the parties

and proceeded to decide the matter by way of its judgment and order dated

15.10.2009.

6.1. The Trial Court held that although PW-1 to PW-3 were related

witnesses but, PW-4 and PW-5 were independent witnesses who had seen

the child and the accused-appellant together; and there was no necessity

for them to depose against the appellant. The Trial Court also held that the

testimony of PW-1 could not be discarded merely because of minor

contradictions, given that she might not have been able to remember

certain details on account of her age and other factors. The 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

‘CrPC’ for short.

independent witnesses who saw her at the scene of occurrence. Further,

the Trial Court held that the oral testimony was consistent with the cause

of death determined by the medical findings.

6.2. After finding that the appellant was the last person to be seen with

the victim child, as established by the testimony of PW-1 to PW-5, the Trial

Court highlighted the importance of cogent evidence establishing the chain

of circumstances; and held that the prosecution had discharged its burden

of proving beyond reasonable doubt that the appellant had committed the

offence of murder of the victim child. The Trial Court summed up its

conclusion as follows: -

“38. In the case before us also, the accused who had been

leading an independent luxurious life with the money more than

sufficient, not willing to live with P.W.1 for the sake of the education

of her child, and without considering that the child was born to her

with an intention to cause death to the child, and also knowing full

well that the act being committed by her would cause death to the

child on 21.6.2007 at 8.00 A.M. in the house of P.W.1, when P.W.1

was not available at house, she had twisted outer end of her saree

and strangled around the neck of her daughter 6 years old Farhana,

who was sleeping and the thyroid cartilage bone was fractured and

thus caused the death. In order to prove the charge, the prosecution

had placed the oral evidences and documentary evidences in a

cogent manner like a chain.”

6.3. Accordingly, the Trial Court held that the appellant was guilty of the

offence under Section 302 IPC and awarded the sentence as noticed

hereinbefore.

7. The appellant challenged the decision of the Trial Court before the

Madras High Court in Criminal Appeal No. 1 of 2010, which was dismissed

by the impugned judgment and order dated 09.03.2010.

7.1. While accepting the submissions that there had been certain

inconsistencies in the statements made by PW-1, the High Court held that

the only point for consideration was as to whether the child was left in the

custody of the appellant at the time of occurrence; and after detailed

examination of the evidence on record, affirmed the findings of the Trial

Court that the appellant was the last person seen with the deceased child.

Hence, the High Court observed that the onus was on the appellant to

explain as to how the death was caused. Addressing the plea of alibi, the

High Court also held that such a plea was not tenable because PW-4 and

PW-5 were independent witnesses, both of whom testified that the

appellant was available at the place of occurrence on 21.06.2007; that she

was arrested on the very same day she was seen with the deceased child;

and that she was the only person available with the child at the time of

occurrence. The High Court, inter alia, observed and held as under: -

“13. Now learned counsel brought to the notice of this Court that

according to P.W.1, when she was returning from the house, she

found that the accused was strangulating the child, which was not

available in 161 statement. It is true, when she gave Ex.P1 report,

she has stated that she actually found the accused/appellant

strangulating the child, which was not available in 161 statement.

Even then, the only point that arises for consideration at this

juncture is 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

came back, she found only the dead body of the child. At the time

of occurrence, the appellant alone was available along with the

child. Hence, it is for the accused to explain as to how the death

was occurred. In the instant case, the prosecution proved that the

child died of asphyxia due to strangulation. If to be so, it is for the

mother/appellant to explain as to how the death was caused.”

“14. The defence plea putforth before the Trial Court and equally

here also is that the accused was absent during the relevant time

and she left the place leaving the child along with P.W.1. The Court

is unable to agree with the same for more reasons than one. It is a

false plea. Firstly, P.Ws.4 and 5 are independent witnesses, who

are neighbors. According to P.Ws.4 and 5, the accused was very

much available at the place of occurrence, which took place on 21st

June, 2007 morning. Secondly, according to the police, she was

arrested on the very day and she was produced before the Court.

When the occurrence had taken place at 8 a.m., the case came to

be registered at 9 a.m. and the First Information 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 explain as to how the occurrence had taken

place. But, she did not explain. Under such circumstances, it is quite

clear that the prosecution has proved its case that except the

accused, no one could have committed the murder of the child.”

7.2. In view of the above and taking all the factors into consideration,

the High Court upheld the judgment of the Trial Court and dismissed the

appeal.

8. Assailing the judgment and order aforesaid, learned counsel for the

appellant has put forward a variety of submissions, particularly assailing

the findings in question with reference to several discrepancies appearing

in the prosecution case; the factum of strained relations between the

husband of the appellant and PW-1 to PW-3 for which, they might be

interested in deposing against the appellant; the plea of alibi of the

appellant, particularly with reference to the testimony of PW-6 Jamal

Mohammed; and no likelihood of motive for the appellant to kill her own

child.

8.1. Learned counsel has made elaborate reference to the contents of

the complaint and several contradictions appearing in the version occurring

in the complaint from that occurring in the statement of PW-1 Basheera,

particularly when in the complaint she alleged to have left her house for

buying idli without taking money but, in the deposition, she has stated that

the appellant gave her Rs. 100 and asked her to get idli; when in the

complaint, PW-1 asserted that the appellant ran away from the scene of

occurrence, but in her deposition, she stated that the appellant was taken

to the police station. Various other contradictions as to what PW-1 saw and

did after reaching back the house have also been referred to.

8.2. Learned counsel has also referred to the omission in the statements

of witnesses that the appellant twisted her saree and strangulated the child

by pressing the same around the neck and has submitted that their

versions do not correlate with the post-mortem examination.

8.3. Learned counsel has submitted that there was no conclusive proof

as regards the theory of arrest of the appellant at the bus stand and has

relied upon the testimony of PW-6 Jamal Mohammed that the appellant

was arrested at the bus stand only when she came back to Perambalur

with him after receiving information about the demise of the child. Further,

with respect to the statement of PW-6, learned counsel has argued that

plea of alibi taken by the appellant is clearly established on record and

looking to the background facts, particularly the strained relations of the

appellant with her mother-in-law and other relatives of her husband, the

plea of alibi and assertion of PW-6 that he and the appellant left the child

in the company of PW-1 and her relatives cannot be ignored.

8.4. Learned counsel has also argued that the motive as suggested by

the prosecution that the appellant wanted to live lavishly and for that

purpose killed the child remains baseless as the appellant was living alone

in her matrimonial house immediately after the marriage where her

husband used to stay during his short visits to India. In this regard, the

learned counsel has also submitted that husband of the appellant was

never examined by the prosecution as regards her conduct and hence,

there is no basis to allege motive. It has also been submitted that in view

of the admitted fact that there were strained relations between husband of

the appellant and PW-1, possibility of the appellant being falsely implicated

so that PW-1 could derive monetary benefit from her son, husband of the

appellant, cannot be ruled out.

8.5. Learned counsel has argued in the alternative that the case does

not fall under Section 302 IPC, particularly in view of the fact that admittedly

there had been strained relations between the parties and even as per the

version of PW-1, on the morning of the date of incident itself, she and the

appellant had entered into a quarrel as the appellant wanted to go to the

place of her father, Kolakkudi. In the given circumstances, according to the

learned counsel, even if the accusations against the appellant are taken

into consideration, it could not be a case beyond culpable homicide not

amounting to murder.

8.6. Learned counsel has relied upon various decisions of this Court

including that in the case of Shyamal Ghosh v. State of West Bengal:

(2012) 7 SCC 646 as regards the witness discrepancies; Sharad

Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116 as

regards circumstantial evidence and the factors when accused would be

entitled to benefit of doubt as also with regard to the testimony of

interested/related witnesses; and Ramnaresh v. State of Chhattisgarh:

(2012) 4 SCC 257 as regards entitlement of the accused to maintain

silence in examination under Section 313 CrPC; and obligation on the part

of the Trial Court to put the material evidence to the accused to extend an

opportunity of explanation.

9. Per contra, learned counsel for the respondent-State has submitted

that the prosecution has discharged its burden of proving beyond

reasonable doubt that the appellant committed the offence punishable

under Section 302 IPC.

9.1. Learned counsel has argued that minor discrepancies in the

statements of witnesses have no effect on the prosecution case, and that

presence of the appellant alone with the child has been corroborated by

the testimony of independent witnesses. In this regard, reliance has been

placed on various decisions including those in Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat: (1983) 3 SCC 217; Krishna Mochi v. State

of Bihar: (2002) 6 SCC 81 and Leela Ram v. State of Haryana: (1999) 9

SCC 525 to submit that minor contradictions are normal and are bound to

appear in the statements of witnesses.

9.2. It has further been submitted by the learned counsel that the

appellant was the last person to be seen with the child before she died;

therefore, she had special knowledge about the death of the child and was

required to provide an explanation in terms of Section 106 of the Evidence

Act, 18726

about the circumstances under which the death took place. In

this regard, learned counsel for the respondent-State has relied upon

various decisions including those in Satpal v. State of Haryana: (2018) 6

SCC 610; and State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254 to

submit that if the accused does not offer an explanation under Section 106

and there is corroborative evidence establishing a 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 to PW-5

clearly establish the fact that the appellant was present at the place of

occurrence and hence, her alibi has not been proved. The appellant was

required to furnish some explanation under Section 313 CrPC but she did

not do so, leaving no room for doubt that she was responsible for the death

of the child.

9.4. Coming to the question of reasonable doubt, learned counsel has

contended that this benefit cannot be stretched and the prosecution cannot

prove its case without there being an iota of doubt. To substantiate this

argument, the learned counsel has relied upon several decisions including

those in State of Haryana v. Bhagirath: (1999) 5 SCC 96; Gangadhar

Behera v. State of Orissa: (2002) 8 SCC 381 and Krishna Mochi (supra)

wherein it was held that it is impossible to prove all the elements in a

‘Evidence Act’ for short.

criminal trial with scientific precision and that reasonable doubt must not be

a ‘trivial’ or ‘merely possible’ doubt.

9.5. The learned counsel for the respondent-State has also countered

the argument that PW-1 to PW-3 were biased witnesses by submitting that

in the instant case, there was no reason to falsely implicate the appellant

or protect the real culprit. In this regard, reliance has been placed on

Gangabhavani v. Rayapati Venkat Reddy: (2013) 15 SCC 298 and State

of Rajasthan v. Kalki: (1981) 2 SCC 752 to submit that a witness can only

be called “interested” when they derive some benefit out of the litigation.

Natural witnesses are not interested witnesses, and if a related witness

was present at the scene of occurrence, his deposition cannot be

discarded.

9.6. It has also been submitted on behalf of the respondent-State that

last seen theory would not apply to PW-1 as she was never found present

alone with the deceased child. It has further been contended that PW-1

would not have benefitted in any way from the death of the child.

9.7. Thus, learned counsel for the respondent-State would submit that

when duly established chain of circumstances leads to no other plausible

hypothesis than the guilt of the appellant, no case for interference in the

concurrent findings of the Trial Court and the High Court is made out.

10. We have given anxious consideration to the rival submissions and

have examined the record with reference to the law applicable.

11. As noticed, the Trial Court and the High Court have concurrently

recorded the findings in this case that the prosecution has been able to

successfully establish the chain of circumstances leading to the only

conclusion that the appellant is guilty of the offence of murder of her

daughter. The concurrent findings leading to the appellant’s conviction

have been challenged in this appeal as if inviting re-appreciation of entire

evidence. Though the parameters of examining the matters in an appeal

by special leave under Article 136 of the Constitution of India have been

laid down by this Court in several decisions but, having regard to the

submissions made in this case, we may usefully reiterate the observations

in the case of Pappu v. The State of Uttar Pradesh: (2022) 10 SCC 321

wherein, after referring to Articles 134 and 136 of the Constitution of India

and Section 2 of the Supreme Court (Enlargement of Criminal Appellate

Jurisdiction) Act, 1970 as also with a detailed reference to the relevant

decisions, this Court has summed up the subtle distinction in the scope of

a regular appeal and an appeal by special leave as follows: -

“71.…. In such an appeal by special leave, where the trial court and

the High Court have concurrently returned the findings of fact after

appreciation of evidence, each and every finding of fact cannot be

contested nor such an appeal could be dealt with as if another forum

for reappreciation of evidence. Of course, if the assessment by the

trial court and the High Court could be said to be vitiated by any

error of law or procedure or misreading of evidence or in disregard

to the norms of judicial process leading to serious prejudice or

injustice, this Court may, and in appropriate cases would, interfere

in order to prevent grave or serious miscarriage of justice but, such

a course is adopted only in rare and exceptional cases of manifest

illegality. Tersely put, it is not a matter of regular appeal. This Court

would not interfere with the concurrent findings of fact based on

pure appreciation of evidence nor it is the scope of these appeals

that this Court would enter into reappreciation of evidence so as to

take a view different than that taken by the trial court and approved

by the High Court.”

11.1. This proposition has been recapitulated in the case of Mekala

Sivaiah v. State of Andhra Pradesh: (2022) 8 SCC 253, in the following

words: -

“15. It is well settled by judicial pronouncement that Article 136 is

worded in wide terms and powers conferred under the said Article

are not hedged by any technical hurdles. This overriding and

exceptional power is, however, to be exercised sparingly and only

in furtherance of cause of justice. Thus, when the judgment under

appeal has resulted in grave miscarriage of justice by some

misapprehension or misreading of evidence or by ignoring material

evidence then this Court is not only empowered but is well expected

to interfere to promote the cause of justice.

16. It is not the practice of this Court to re-appreciate the evidence

for the purpose of examining whether the finding of fact concurrently

arrived at by the trial court and the High Court are correct or not. It

is only in rare and exceptional cases where there is some manifest

illegality or grave and serious miscarriage of justice on account of

misreading or ignoring material evidence, that this Court would

interfere with such finding of fact.”

12. Learned counsel for the appellant has endeavoured to argue that

there are several shortcomings and lacunae in the prosecution case,

particularly in view of several inconsistencies and contradictions in the

versions of the witnesses; and that the relied upon factors are not providing

such links in the circumstances which may lead to the finding on the guilt

of the appellant. While dealing with such submissions, we may usefully take

note of the basic principles applicable to this case, as noticeable from the

relevant cited decisions.

12.1. The principles explained and enunciated in the case of Sharad

Birdhichand Sarda (supra) remain a guiding light for the Courts in regard

to the proof of a case based on circumstantial evidence. Therein, this Court

referred to the celebrated decision in the case of Hanumant v. State of

Madhya Pradesh: AIR 1952 SC 343 and deduced five golden principles

of proving a case based on circumstantial evidence in the following terms:-

“152. It may be useful to extract what Mahajan, J. has laid down

in Hanumant case:

“It is well to remember that in cases where the evidence is of a

circumstantial nature, the circumstances from which the conclusion

of guilt is to be drawn should in the first instance be fully established,

and all the facts so established should be consistent only with the

hypothesis of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they should be

such as to exclude every hypothesis but the one proposed to be

proved. In other words, there must be a chain of evidence so far

complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must be such

as to show that within all human probability the act must have been

done by the accused.”

153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against an

accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be

drawn should be fully established.

It may be noted here that this Court indicated that the circumstances

concerned “must or should” and not “may be” established. There is

not only a grammatical but a legal distinction between “may be

proved” and “must be or should be proved” as was held by this Court

in Shivaji Sahabrao Bobade v. State of Maharashtra7 where the

observations were made:

“Certainly, it is a primary principle that the accused must be and not

merely may be guilty before a court can convict and the mental

distance between ‘may be’ and ‘must be’ is long and divides vague

conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should not

be explainable on any other hypothesis except that the accused is

guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the one

to be proved, and

(5) there must be a chain of evidence so complete as not to leave

any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human

probability the act must have been done by the accused.

(1973) 2 SCC 793.

154. These five golden principles, if we may say so, constitute

the panchsheel of the proof of a case based on circumstantial

evidence.

155. It may be interesting to note that as regards the mode of

proof in a criminal case depending on circumstantial evidence, in

the absence of a corpus delicti, the statement of law as to proof of

the same was laid down by Gresson, J. (and concurred by 3 more

Judges) in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should be proved by

such circumstances as render the commission of the crime morally

certain and leave no ground for reasonable doubt: the

circumstantial evidence should be so cogent and compelling as to

convince a jury that upon no rational hypothesis other than murder

can the facts be accounted for.”

156. Lord Goddard slightly modified the expression “morally

certain” by “such circumstances as render the commission of the

crime certain”.

157. This indicates the cardinal principle of criminal

jurisprudence that a case can be said to be proved only when there

is certain and explicit evidence and no person can be convicted on

pure moral conviction...””

12.2. As regards inconsistencies and/or discrepancies in the version of

the witnesses, in the case of Shyamal Ghosh (supra) this Court has

explained the distinction between serious contradictions and omissions

which materially affect the prosecution case and marginal variations in the

statement of witnesses in the following terms: -

“68. From the above discussion, it precipitates that the

discrepancies or the omissions have to be material ones and then

alone, they may amount to contradiction of some serious

consequence. Every omission cannot take the place of a

contradiction in law and therefore, be the foundation for

doubting the case of the prosecution. Minor contradictions,

inconsistencies or embellishments of trivial nature which do

not affect the core of the prosecution case should not be taken

to be a ground to reject the prosecution evidence in its entirety.

It is only when such omissions amount to a contradiction creating a

serious doubt about the truthfulness or creditworthiness of the

witness and other witnesses also make material improvements or

contradictions before the court in order to render the evidence

unacceptable, that the courts may not be in a position to safely rely

upon such evidence. Serious contradictions and omissions which

materially affect the case of the prosecution have to be understood

in clear contradistinction to mere marginal variations in the

statement of the witnesses. The prior may have effect in law upon

the evidentiary value of the prosecution case; however, the latter

would not adversely affect the 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 be reopened in an

appeal by special leave unless shown to be based on no evidence or

inadmissible evidence or being perverse or suffering from disregard of some

vital piece of evidence. In that case the finding of guilt concurrently recorded

by the Trial Court and the High Court was challenged mainly on the ground

of minor discrepancies in the evidence for which, this Court emphasised that

excessive importance cannot be attached to such minor discrepancies. This

Court explained the reasons including that a witness cannot be expected to

possess a photographic memory; a witness is likely to be overtaken by events

particularly of unanticipated occurrence; the powers of observation differ from

person to person; by and large people cannot accurately recall the

conversations or the sequence of events; and a witness howsoever truthful

is liable to be overawed by the Court atmosphere and piercing crossexamination etc. The following passage from this decision could be usefully

extracted thus: -

“5……Their evidence has been considered to be worthy of

acceptance. It is a pure finding of fact recorded by the Sessions

Court and affirmed by the High Court. Such a concurrent finding of

fact cannot be reopened in an appeal by special leave unless it is

established : (1) that the finding is based on no evidence or (2) that

the finding is perverse, it being such as no reasonable person could

have arrived at even if the evidence was taken at its face value or

(3) the finding is based and built on inadmissible evidence, which

evidence, if excluded from vision, would negate the prosecution

case or substantially discredit or impair it or (4) some vital piece of

evidence which would tilt the balance in favour of the convict has

been overlooked, disregarded, or wrongly discarded. The present

is not a case of such a nature. The finding of guilt recorded by the

Sessions Court as affirmed by the High Court has been challenged

mainly on the basis of minor discrepancies in the evidence. We do

not consider it appropriate or permissible to enter upon a

reappraisal or reappreciation of the evidence in the context of

the minor discrepancies painstakingly highlighted by learned

Counsel for the appellant. Overmuch importance cannot be

attached to minor discrepancies. The reasons are obvious:

“(1) By and large a witness cannot be expected to

possess a photographic memory and to recall the details

of an incident. It is not as if a video tape is replayed on the

mental screen.

(2) Ordinarily it so happens that a witness is overtaken

by events. The witness could not have anticipated the

occurrence which so often has an element of surprised.

The mental faculties therefore cannot be expected to be

attuned to absorb the details.

(3) The powers of observation differ from person to

person. What one may notice, another may not. An object

or movement 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 a

conversation and reproduce the very words used by them

or heard by them. They can only recall the main purport of

the conversation. It is unrealistic to expect a witness to be

a human tape-recorder.

(5) In regard to exact time of an incident, or the time

duration of 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 reliable estimates in such matters.

Again, it depends on the time-sense of individuals which

varies from person to person.

(6) Ordinarily a witness cannot be expected to recall

accurately the sequence of events which takes place in

rapid succession or in a short time span. A witness is

liable to get confused, or mixed up when interrogated

later on.

(7) A witness, though wholly truthful, is liable to be

overawed by the court atmosphere and the piercing

cross-examination made by counsel and out of

nervousness mix up facts, get confused regarding

sequence of events, or fill up details from imagination on

the spur of the moment. The sub-conscious mind of the

witness sometimes so operates on account of the fear of

looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence

witnessed by him — Perhaps it is a sort of a psychological

defence mechanism activated on the spur of the moment.”

(emphasis supplied)

12.4. In the case of Gangadhar Behera (supra), this Court again

highlighted that the normal discrepancies in evidence are of natural

occurrence in the Court, while observing as under: -

“15. Normal discrepancies in evidence are those which are due to

normal errors of observation, normal errors of memory due to lapse

of time, due to mental disposition such as shock and horror at the

time of occurrence and those are always there however honest and

truthful a witness may be. Material discrepancies are those which

are not normal, and not expected of a normal person. Courts have

to label the category to which a discrepancy may be categorized.

While normal discrepancies do not corrode the credibility of a party's

case, material discrepancies do so. These aspects were highlighted

recently in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81] .…..”

12.5. As regards the approach towards the appreciation of the evidence of

closely related witnesses, in the case of Gangabhavani (supra), this Court

has explained the principles as follows: -

“15…..It is a settled legal proposition that the evidence of closely

related witnesses is required to be carefully scrutinised and

appreciated before any conclusion is made to rest upon it, regarding

the convict/accused in a given case. Thus, the evidence cannot

be disbelieved merely on the ground that the witnesses are

related to each other or to the deceased. In the case the evidence

has a ring of truth to it, is cogent, credible and trustworthy, it can,

and certainly should, be relied upon. (Vide Bhagaloo Lodh v. State

of U.P.) [(2011) 13 SCC 206]”

(emphasis supplied)

12.6. In the case of Ramnaresh (supra), this Court has, though recognised

the right of the accused to maintain silence during investigation as also before

the Court in the examination under Section 313 CrPC but, at the same time,

has also highlighted the consequences of maintaining silence and not

availing opportunity to explain the circumstances appearing against him,

including that of the permissibility to draw adverse inference in accordance

with law. This Court observed and held as under: -

“49. In terms of Section 313 CrPC, the accused has the freedom

to maintain silence during the investigation as well as before the

court. The accused may choose to maintain silence or complete

denial even when his statement under Section 313 CrPC is

being recorded, of course, the court would be entitled to draw

an inference, including adverse inference, as may be

permissible to it in accordance with law.

**** **** *****

52. It is a settled principle of law that the obligation to put material

evidence to the accused under Section 313 CrPC is upon the court.

One of the main objects of recording of a statement under this

provision of CrPC is to give an opportunity to the accused to explain

the circumstances appearing against him as well as to put

forward his defence, if the accused so desires. But once he does

not avail this opportunity, then consequences in law must

follow. Where the accused takes benefit of this opportunity, then

his statement made under Section 313 CrPC, insofar as it supports

the case of the prosecution, can be used against him for rendering

conviction. Even under the latter, he faces the

consequences in law.”

(emphasis supplied)

12.7. The principles enunciated by this Court in regard to the obligation of

explanation in terms of Section 106 of the Evidence Act and the

consequences of want of explanation have been explained by this Court in

the case of Satpal (supra) as follows: -

“6. We have considered the respective submissions and the

evidence on record. There is no eyewitness to the occurrence but

only circumstances coupled with the fact of the deceased having

been last seen with the appellant. Criminal jurisprudence and the

plethora of judicial precedents leave little room for reconsideration

of the basic principles for invocation of the last seen theory as a

facet of circumstantial evidence. Succinctly stated, it may be a weak

kind of evidence by itself to found conviction upon the same

singularly. But when it is coupled with other circumstances

such as the time when the deceased was last seen with the

accused, and the recovery of the corpse being in very close

proximity of time, the accused owes an explanation under

Section 106 of the Evidence Act with regard to the

circumstances under which death may have taken place. If the

accused offers no explanation, or furnishes a wrong

explanation, absconds, motive is established, and there is

corroborative evidence available inter alia in the form of

recovery or otherwise forming a chain of circumstances

leading 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 or

break in the link of chain of circumstances, the benefit of doubt must

go to the accused. Each case will therefore have to be examined 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 as against the

accused, this Court emphasised that Section 106 of the Evidence Act does

not relieve the prosecution of its primary duty to prove the guilt of the accused

as follows: -

“19. …the Court is of the opinion that the prosecution had miserably

failed to prove the entire chain of circumstances which would

unerringly conclude that alleged act was committed by the accused

only and none else. Reliance placed by learned advocate Mr.

Mishra for the State on Section 106 of the Evidence Act is also

misplaced, inasmuch as Section 106 is not intended to relieve the

prosecution from discharging its duty to prove the guilt of the

accused….”

12.9. Apart from the above, we may also usefully take note of the decision

of this Court in the case of Sabitri Samantaray v. State of Odisha: 2022

SCC OnLine SC 673. In that case based on circumstantial evidence, with

reference to Section 106 of the Evidence Act, a 3-Judge Bench of this Court

has noted that if the accused had a different intention, the facts are specially

within his knowledge which he must prove; and if, in a case based on

circumstantial evidence, the accused evades response to an incriminating

question or offers a response which is not true, such a response, in itself,

would become an additional link in the chain of events. This Court said, inter

alia, as under: -

“19. Thus, although Section 106 is in no way aimed at relieving the

prosecution from its burden to establish the guilt of an accused, it

applies to cases where chain of events has been successfully

established by the prosecution, from which a reasonable inference

is made out against the accused. Moreover, in a case based on

circumstantial evidence, whenever an incriminating question is

posed to the accused and he or she either evades response, or

offers a response which is not true, then such a response in itself

becomes an additional link in the chain of events.”

13. While keeping the aforesaid principles in view, and while reiterating

that wholesome reappreciation of evidence is not within the scope of this

appeal, we may examine if the concurrent findings call for any interference

in this case.

14. A few basic aspects are not of much controversy in this case,

essentially based on circumstantial evidence. The husband of the appellant

was mostly living abroad and the appellant was mostly living with her

parents at Kolakkudi. As per the version of the witnesses PW-1, PW-2 and

PW-3, who supported the prosecution case as also as per the version of

PW-6 Jamal Mohammed, father of the appellant, who did not support the

prosecution case and was declared hostile, this much remains indisputable

that on 18.06.2007, the appellant came with her father and with 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 the testimony

of PW-6 Jamal Mohammed, on 20.06.2007, he left the victim child with

PW-1 Basheera and went back to Kolakkudi with his daughter, that is, the

appellant. According to the prosecution case, the appellant remained very

much in Perambalur with the victim child and in the morning of 21.06.2007,

she strangled the child when her mother-in-law (PW-1) was out of the

house. According to PW-6 Jamal Mohammed, the appellant was not in

Perambalur at the relevant point of time; and she came to Perambalur with

him on 21.06.2007 in the late afternoon after receiving information about

demise of the child and thereafter, she was arrested. Some of the other

prosecution witnesses were also given the same suggestions in the crossexamination. These aspects lead to the plea of alibi as has been referred

to and relied upon by the learned counsel for the appellant.

15.1. The Trial Court and the High Court have examined the evidence on

record and have rejected this plea of alibi with reference to the significant

features of the case that there is no corroborative evidence on record, to

the assertion made by PW-6 Jamal Mohammed, that on 20.06.2007, he

took his daughter back to his village Kolakkudi. The accused-appellant did

not adduce any evidence to prove that she was not present in Perambalur,

at the time and place of incident. Apart from the fact that PW-1, PW-2 and

PW-3 consistently maintained their versions that the appellant was

available at the time and place of incident, two independent witnesses, PW4 Sharfunisha, landlord of PW-1 and PW-5 Thiru-Jothi, neighbour of PW-1

testified that they saw the appellant sitting with or near the body of the

deceased child immediately after, and at the place of, the incident.

Although there appears to be no reason to discard the testimonies of PW2 and PW-3 but even if for the sake of argument their testimonies are left

aside for being directly related witnesses who might not be favourably

disposed towards the appellant, there appears no 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-5 would be interested in testifying

about the presence of appellant around the time, and at the place of

incident.

15.2. Apart from the foregoing, fact of the matter also remains that the

appellant was arrested on 21.06.2007 i.e., the very day of the incident,

albeit nine hours after the incident, at the bus stand. However, when the

theory propounded by PW-6 Jamal Mohammed that the appellant had

travelled to Kolakkudi with him on 20.06.2007 and then travelled back to

Perambalur on 21.06.2007 is discarded, all other facts taken together lead

to the logical conclusion that the plea of alibi is required to be rejected.

16. Another major factor highlighted and elaborated by the learned

counsel for the appellant relates to certain discrepancies appearing in the

versions of PW-1 Basheera, as stated in the complaint made to the police

compared with her assertions before the Court. No doubt, there had 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 be believed or

not. However, a close look at the record makes it clear that the

discrepancies, said to be of contradictions in the versions given by PW-1

Basheera, could only be considered to be normal and natural or being the

result of her want of proper comprehension.

16.1. PW-1 Basheera is none other than mother-in-law of the appellant

and the grand-mother of the victim child. The first discrepancy in the matter

is that, as per the version in the complaint, she left her house 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 the complaint, she asserted

that the appellant ran away from the scene of occurrence but in her

deposition, she stated that the appellant was taken to the police station.

Thirdly, what she saw and did upon reaching the house after visiting the

market is also stated differently in the complaint and in the deposition. The

question is as to whether her testimony and the prosecution case be

rejected altogether because of these discrepancies.

16.2. In our view, the Trial Court has rightly analysed the matter and has

rightly observed that when PW-1, sixty-five years of age, was deposing

before the Court from her memory after one year from the incident, such

discrepancies would not result in rejection of her testimony altogether. The

relevant features emanating from her assertions in the complaint as also in

the statement are that she had gone out to purchase eatables in the

morning while leaving the victim child with the appellant; and after coming

back, found the child dead, with the appellant being with the child. As to

whether she had gone to the market after being given money by the

appellant or without taking money, in our view, cannot override entire of her

testimony as also the testimonies of other witnesses. Further, the said

witness PW-1 seems to have obviously lost the track of facts when she

asserted in her deposition that the appellant was taken to the police station

after the incident. It has clearly been established on record that the

appellant was arrested in the late afternoon at the bus stand and it has

nowhere been shown if she was taken to the police station immediately

after the incident. A suggestion made in that regard to the official witness

PW-10 Subbulakshmi has also been specifically denied by her. The said

discrepancy in the version of PW-1 is also of no relevance and the

concurrent findings of the two Courts cannot be displaced on that count.

Even the version given in the complaint as if PW-1 saw the appellant

strangling her child seems to be an overt assertion immediately after the

incident. The other witnesses who had reached the scene of crime

including the independent witnesses PW-4 and PW-5 have consistently

maintained that the appellant was available with the dead 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 any reason that

entire prosecution case be disbelieved and discarded because PW-1 has

not projected the case in a consistent manner. Apart from the private

witnesses, all the relevant facts have been duly established in the

testimonies of the official witnesses too. The discrepancies as noticed in

the present case, at the most, could be said to be of minor contradictions

or inconsistencies or embellishments of trivial nature; and are reasonably

referable to the reasons recounted by this Court in Bharwada Bhoginbhai

Hirjibhai (supra) for which, the minor discrepancies do occur in evidence

and excessive importance cannot be attached to them.

17. The submission that the assertion about the appellant having

strangled the victim, by pressing her saree around the neck, does not

correlate with the post-mortem examination is also untenable. As noticed,

the medical officers have clearly established that the child suffered

strangulation with a wound measuring 20 cm in length and 2 cm in breadth

around the neck and with thyroid cartilage bone having been fractured. PW8 also opined that if outer end of the saree was twisted and put around the

neck and the person was strangled, there was a chance of such a wound.

The saree in question had been duly recovered from the appellant and was

said to be carrying blood stains.

18. In the given set of facts and circumstances, the motive as

suggested by the prosecution, i.e., the desire of the appellant not to live in

her matrimonial house and, on being forced to do so only because of the

child, she being not interested in the existence of the child, though presents

a somewhat difficult proposition but, at the same time, cannot be ruled out

altogether, particularly looking to the fact that, until 18.06.2007, the

appellant was living with her parents and she was forced to come to

Perambalur for the purpose of upbringing of the child with the family of her

husband.

19. Another submission made on behalf of the appellant, that her

husband has not been examined by the prosecution, does not take her

case any further. Her husband was not shown to be in the country at the

time of incident and he was not a direct witness in relation to the material

facts to be established by the prosecution. Other way round, if at all the

appellant considered him to be a material witness, nothing prevented her

from making a prayer to the Court for his examination and nothing

prevented her from making specific submissions in that regard during her

examination under Section 313 CrPC.

20. As regards the statement under Section 313 CrPC, the appellant

has not given any explanation whatsoever and has not made any statement

except denying the circumstances put to her. In the facts of the present

case, when the prosecution evidence categorically established the fact that

the victim child was last seen alive with the appellant only; she was required

to explain the circumstances leading to the demise of the child. Upon her

failure to do so and failure to give the explanation with regard to the

circumstances under which death may have taken place, burden of Section

106 of the Evidence Act operates heavily against the appellant, as

noticeable from the decisions above referred, particularly in the cases of

Satpal and Sabitri Samantaray (supra).

21. In an overall comprehension of the material on record and the

findings recorded by the Trial Court and the High Court, in our view, no

case for interference with the concurrent findings of fact is made out.

22. The submissions made in the alternative that in the given set of

circumstances, the present case could only be of culpable homicide not

amounting to murder has only been noted to be rejected. Even if it be taken

that there was a quarrel of the appellant with her mother-in-law (PW-1) in

the morning of the date of incident because the appellant wanted to go the

place of her father, it cannot be said that such a quarrel would make it a

case of grave and sudden provocation. The circumstances as proved on

record, and the manner of commission of crime, make it clear that the

present case cannot be brought under any of the Exceptions of Section

300 IPC; and conviction and sentencing of the appellant under Section 302

IPC cannot be faulted.

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

..…………………………J.

(DINESH MAHESHWARI)

..…………………………J.

(BELA M. TRIVEDI)

NEW DELHI;

FEBRUARY 22, 2023

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