Legally Bharat

Kerala High Court

Sindhu @ Kochuthressia vs State Of Kerala on 25 September, 2024

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

Crl. Appeal. 1224/2017


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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                   &
            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
                         CRL.A NO. 1224 OF 2017

 CRIME NO.1059/2015 OF VARAPPUZHA POLICE STATION, ERNAKULAM

(CP NO.11 OF 2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-
III, NORTH PARAVUR,) AGAINST THE JUDGMENT DATED 16.12.2017
IN SC NO.430 OF 2016 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - II, NORTH PARAVUR.

APPELLANT/ACCUSED:

             SINDHU @ KOCHUTHRESSIA
             AGED 39 YEARS, W/O MICHAEL,
             ARAKKAL HOUSE, PIZHALA,
             KADAMAKKUDY VILLAGE.


             BY ADV SRI.K.V.SABU


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.


             SMT.BINDU.O.V., PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 30.08.2024,
THE COURT ON 25.09.2024 DELIVERED THE FOLLOWING:
 Crl. Appeal. 1224/2017


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                               JUDGMENT

Dated this the 25th day of September, 2024

C. Pratheep Kumar, J

A mother, who has been convicted for the murder of her two minor

children by throwing them into a river, is the appellant herein.

2. Till 02.12.2015 the appellant Kochuthresia @ Sindhu along with

her husband Michael, their minor children Sherin aged 7 years, Antony

Shown aged 41/2 years, her mother-in-law Elsy and her brother-in-law Francis

@ Kuttan were residing happily, in their house at Pizhala in Kadamakudy

Village. On 2.12.2015 her husband Michael had to go to Ernakulam for the

purpose of taking learner’s driving licence. However, he forgot to take his

photograph with him, when he went to Ernakulam. After returning home in

the evening, he scolded his wife for not giving him the photograph. Elsy, her

mother-in-law also scolded her for the above omission on her part.

Thereafter, Elsy did not talk to her or dine along with her and also shown her

anger towards Sindhu.

3. In the evening on 4.12.2015, when Sindhu along with the

children were about to go to Pizhala Church, to attend the festival therein,

Elsy threatened that she will consume poison. Then Sindhu along with the
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children went to the church, attended the Holy mass and thereafter met

Micheal near his Chinese fishing net, which was near to the Pizhala-

Moolampilly ferry. When Antony Shown demanded ice cream, she requested

Micheal for money, which was not available with him. Though Micheal tried

to contact Kuttan, the same was not fruitful. Then Sindhu along with the

children reached the bridge connecting Kothad and Moolampilly, across the

Moolampilly river in the Container Road. Thereafter, since 8 p.m. on

4.12.2015, Sindhu and the children were found missing. Though intensive

search was conducted by the fishermen and the police in Moolampilly river

and nearby places, they could not be found. At about 8 a.m. on 5.12.2015,

Sindhu was found alive, in the river near to the Chinese fishing net of one

Johnson. On 6.12.2015, the body of Sherin was found in the river. On

7.12.2015 the body of Antony Shown was also found in the river.

4. On 5.12.2015 at 2.20 p.m. Crime No.1059/2015 of Varapuzha

Police Station was registered under Section 57 of the Kerala Police Act,

alleging that at about 8 p.m. on 4.12.2015, Sindhu jumped from the bridge

into Moolampilly river, along with the children and consequently, the children

were found missing, while Sindhu escaped. After investigation, final report

was filed under Section 302 IPC alleging that Sindhu committed murder of
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two minor children by throwing them one after the other, from Moolampilly

bridge, into the river.

5. The evidence on the side of the prosecution consists of the oral

testimonies of PWs 1 to 22 and documentary evidence Exhibits P1 to P22.

MOs 1 to 4 were identified. On the side of the accused, DW1 was examined.

6. After appreciating the available evidence, as per judgment dated

16.12.2017 in Sessions Case No.430/2016, the Additional Sessions Judge,

North Paravur found the accused guilty of the offence under Section 302 IPC

and sentenced her to undergo imprisonment for life and to pay a fine of

Rs.5,000/- for murdering Sherin. A similar punishment was awarded for

murdering Antony Shown. Aggrieved by the above judgment of conviction

and sentence, the accused preferred this appeal raising various contentions.

7. Now, the points that arise for consideration are the following:

1) Whether the prosecution has succeeded in proving beyond reasonable

doubt that the accused has committed murder of minor children Sherin

and Antony Shown as alleged?

2) Whether the trial court was justified in awarding two separate

sentences under Section 302 IPC for committing murder of Sherin as

well as Antony Shown?

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8. Heard both sides.

9. Point No.1: In this case, there is no direct evidence to prove the

charge against the accused that she had committed murder of her two minor

children and therefore, the prosecution has relied upon circumstantial

evidence available in the case. PW1 is the brother in law of the accused,

who had given Exhibit P1 FI statement to the police. Admittedly, PW1 had

not seen the incident. In the FI statement it is alleged that since 8 p.m. on

4.12.2015, the accused and the minor children were found missing, that on

the next morning, the accused was rescued from the Moolampilly river and

also that the children were still missing.

10. The husband of the accused, Michael as PW2 would swear that he

along with the accused were living happily till the ill-fated day on 4.12.2015.

According to him, on that day, his wife along with the children went to

Moolampilly Church, attended the Holy mass and thereafter reached near his

Chinese fishing net, at about 7 p.m. Though she requested for money to

purchase ice cream for the children, he could not arrange the same. Then he

had followed them up to the road and thereafter he does not know what

happened to them.

11. As per the prosecution case, the accused along with the children
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reached Kothad ferry in the raft of PW3, who is a cousin of Michael.

However, at the time of evidence, he turned hostile to prosecution and

deposed that on 4.12.2015, he had not seen the accused as well as her

children.

12. PW4 is a neighbour of the accused as well as PW2. He would

swear that the search conducted by them on 4.12.2015 for tracing out the

missing accused as well as her children, was in vain. However, on the next

day, on 5.12.2015 between 7.30 a.m. and 8 a.m. he had seen the accused near

the Chinese fishing net of one Johnson. On the assumption that she had died

by drowning, he reached near her and found that she was alive. He along

with other persons took her out of the water and she was taken to a nearby

hospital.

13. PW5 would swear that he had not participated in the search, but he

heard that the children of Michael drowned on 4.12.2015. PW6, another

cousin of PW2 would swear that the accused and the children were missing

since 4.12.2015 and the children drowned in the incident. On the next day,

he had seen the body of Antony Shown by the side of Moolampilly river.

PW9, another cousin of PW2 would also swear that since the evening of

4.12.2015, the accused and the children were found missing and he heard that
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the children drowned and the accused escaped.

14. PW11, the mother-in-law of the accused turned hostile to the

prosecution. According to her, PW2 and the accused were living together

happily and there was no problem between them.

15. PW12 is an attestor to Exhibit P10 scene mahazar prepared by

PW20, the investigating officer. He would swear that after attending the

funeral ceremonies of the children, when he reached Moolampilly bridge, he

saw the police preparing the scene mahazar in this case. He would also swear

that the police seized from the bridge MO1 bow and MO2, a pair of footwear.

PW16 would swear that he had seen the dead body of Antony Shown on

7.12.2015 near a Chinese fishing net at Perikkadavu.

16. Exhibit P11 is the postmortem certificate in respect of Sherin,

proved by PW13. Exhibit P12 is the postmortem certificate in respect of

Antony Shown proved by PW14. They would swear that both the children

died due to drowning.

17. Exhibit P13 is the wound certificate in respect of the treatment of

the accused, proved by PW17. PW17 would swear that the accused was

admitted in the hospital at 8.27 a.m. on 5.12.2015 and discharged on

7.12.2015. The accused was conscious and oriented and no visible external
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injuries were noted on her body. PW18, the Consultant in Internal Medicine

in Aster Medicity Hospital, Ernakulam would swear that on 6.12.2015 she

had examined the accused and found that there was no Psychiatric illness to

her. Exhibit P14 is the copy of the case-sheet in respect of the examination

conducted by her on the accused.

18. PW20, the Circle Inspector of Paravur, who was in charge of the

Circle Inspector, Njarakkal would swear that on 7.12.2015 he had prepared

Exhibit P10 Scene Mahazar. From the scene of occurrence, he had seized

MO1 bow, MO3 pair of footwear and MO4 series, two burst balloons. He

had arrested the accused on 7.12.2015 at 4 p.m. and filed a report adding

Section 302 IPC in place of Section 57 of the KP Act. PW21 was the SHO,

Varapuzha Police Station, who had registered Exhibit P21 FIR on the basis of

Exhibit P1 FI statement given by PW1. He had prepared Exhibit P7 and P8

inquest reports. PW22 was the Circle Inspector of Police, who had completed

the investigation and filed the final report.

19. Adv. Sri. KV. Sabu, who appeared on behalf of the accused

would argue that the prosecution could not prove the charge against the

accused beyond reasonable doubt. Therefore, he prayed for allowing the

appeal and to acquit the accused. On the other hand, learned Public
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Prosecutor Smt. Bindu O.V. would argue that the circumstantial evidence

adduced by the prosecution is sufficient to prove the guilt of the accused

beyond reasonable doubt. Therefore, she prayed for sustaining the conviction

and for dismissal of the appeal.

20. As already noted above, in this case there is no direct evidence to

prove the charge. The law of circumstantial evidence is well settled. When a

case is governed by such evidence, the evidence must point singularly to the

guilt of the accused, closing out the possibility of all other hypothesis.

(Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra, 2023

KHC 6605).

21. The most fundamental and basic decision relating to the nature,

character and essential proof required in a criminal case which rests on

circumstantial evidence alone is Hanuman Govind, Nargundkar and

Another v. State of M.P., AIR 1952 SC 343. In the above decision, the

Hon’ble Apex Court held in paragraph 10 thus:

“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.

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Again, the circumstances should be of a conclusive nature and
pendency 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.”

22. The five golden principles (styled as Panchasheel) relating to

circumstantial evidence consistently followed in subsequent decisions is,

Sharad Birdhichand Sardar v. State of Maharashtra, 1984 (4) SCC 116.

In the said decision, the Apex Court after analysing various decisions

including Hanuman Govind (supra), in paragraph 153 held that:

“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 &
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Anr. v. State of Maharashtra where the following 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.”

23. The learned Public Prosecutor would further argue that the

children were last seen along with the accused and as such she owes an

explanation as to what happened to them while they were in her custody, in

the light of the “last seen theory”. The trial court accepted the above argument

and held that in the light of Section 106 of the Evidence Act she is bound to
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offer satisfactory explanation and in the absence of such explanation adverse

inference is liable to be drawn against her.

24. In support of the last seen theory, the learned Public Prosecutor

has relied upon the decision of a Division Bench of this Court in Teena v.

State of Kerala, 2022 (2) KLT 593. In the above decision, the Division

Bench has relied upon the decision of the Apex Court in Trimukh Maroti

Kirkan v. State of Maharashtra, (2006)10 SCC 681 in which it was held in

paragraph 17 thus:

17. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to show
that shortly before the commission of crime they were seen together
or the offence took place in the dwelling home where the husband
also normally resided, it has been consistently held that if the
accused does not offer any explanation how the wife received injuries
or offers an explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for commission
of the crime. …”.

25. In the decision in Sahadevan and Another v. State of Tamil

Nadu, (2012) 6 SCC 403 the Apex Court followed the decision in Arjun

Marik v. State of Bihar [1994 Supp.(2) SCC 372] to hold that:

” … The Court further observed that it is settled law that the
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only circumstance of last seen will not complete the chain of
circumstances to record a finding that it is consistent only with
the hypothesis of guilt of the accused and, therefore, no
conviction, on that basis alone, can be founded”.

26. In Anjan Kumar Sama and Others v. State of Assam, 2017

(14) SCC 359, the Apex Court held that :

“It is clear from the above that in a case where the other
links have been satisfactorily made out and the circumstances
point to the guilt of the accused, the circumstance of last seen
together and absence of explanation would provide an additional
link which completes the chain. In the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of
conviction.”

27. In the decision in Nizam and Another v. State of Rajasthan,

2016 (1) SCC 550, in paragraph 14, the Apex Court further held that:

“……Undoubtedly, “last seen theory” is an important link
in the chain of circumstances that would point towards the guilt
of the accused with some certainty. The “last seen theory” holds
the Courts to shift the burden of proof to the accused and the
accused to offer a reasonable explanation as to the cause of
death of the deceased. It is well – settled by this Court that it is
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not prudent to base the conviction solely on “last seen theory”.

“Last seen theory” should be applied taking into consideration
the case of the prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being so last
seen.”

28. With regard to the time gap and last seen theory, in Nizam

(supra), the Apex Court held thus in paragraph 18 :

“18. …… In the absence of definite evidence that
appellants and deceased were last seen together and when the
time gap is long, it would be dangerous to come to the
conclusion that the appellants are responsible for the murder of
Manoj and are guilty of committing murder of Manoj. Where
time gap is long it would be unsafe to base the conviction on the
“last seen theory”; it is safer to look for corroboration from
other circumstances and evidence adduced by the
prosecution. ….”

29. In State of Goa v. Sanjay Thakran and Another, 2007 (3) SCC

755, the Apex Court in paragraph 29 held that:

“From the principle laid down by this Court, the
circumstance of last seen together would normally be taken into
consideration for finding the accused guilty of the offence
charged with when it is established by the prosecution that the
time gap between the point of time when the accused and the
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deceased were found together alive and when the deceased was
found dead is so small that possibility of any other person being
with the deceased could completely be ruled out. The time gap
between the accused persons seen in the company of the
deceased and the detection of the crime would be a material
consideration for appreciation of the evidence and placing
reliance on it as a circumstance against the accused. But, in all
cases, it cannot be said that the evidence of last seen together is
to be rejected merely because the time gap between the accused
persons and the deceased last seen together and the crime
coming to light is after a considerable long duration. There can
be no fixed or straight jacket formula for the duration of time
gap in this regard and it would depend upon the evidence led by
the prosecution to remove the possibility of any other person
meeting the deceased in the intervening period, that is to say, if
the prosecution is able to lead such an evidence that likelihood
of any person other than the accused, being the author the
crime, becomes impossible, then the evidence of circumstance of
last seen together, although there is long duration of time, can
be considered as one of the circumstances in the chain of
circumstances to prove the guilt against such accused persons.
Hence, if the prosecution proves that in the light of the facts and
circumstances of the case, there was no possibility of any other
person meeting or approaching the deceased at the place of
incident or before the commission of the crime, in the
intervening period, the proof of last seen together would be
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relevant evidence. For instance, if it can be demonstrated by
showing that the accused persons were in exclusive possession
of the place where the incident occurred or where they were last
seen together with the deceased, and there was no possibility of
any intrusion to that place by any third party, then a relatively
wider time gap would not affect the prosecution case”.

30. The scope of Section 106 of the Evidence Act was discussed by

the Hon’ble Supreme Court in the decision in Shambhu Nath Mehra v. State

of Ajmer, AIR 1956 SC 404. In paragraph 11 it was held:

“This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and section 106 is
certainly not intended to relieve it of that duty. On the contrary,
it is designed to meet certain exceptional cases in which it would
be impossible, or at any rate disproportionately difficult, for the
prosecution to establish facts which are “especially” within the
knowledge of the accused and which he could prove without
difficulty or inconvenience. The word “especially” stresses that.
It means facts that are preeminently or exceptionally within his
knowledge. ”

31. In Vikramjith Singh @Vicky v. State of Punjab, 2006 (12)

SCC 306, the Apex Court held in paragraph 14 that:

“Section 106 of the Indian Evidence Act does not relieve the
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prosecution to prove its case beyond all reasonable doubt. Only

when the prosecution case has been proved the burden in regard to

such facts which was within the special knowledge of the accused

may be shifted to the accused for explaining the same. Of course,

there are certain exceptions to the said rule, e.g., where burden of

proof may be imposed upon the accused by reason of a statute. ”

32. In Nagendra Sah v. State of Bihar, 2021 (10) SCC 725, the

Apex Court held in paragraph 21 that:

“21. When a case is resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
burden placed on him by virtue of Section 106 of the Evidence Act,
such a failure may provide an additional link to the chain of
circumstances. In a case governed by circumstantial evidence, if
the chain of circumstances which is required to be established by
the prosecution is not established, the failure of the accused to
discharge the burden under Section 106 of the Evidence Act is not
relevant at all. When the chain is not complete, falsity of the
defence is no ground to convict the accused. ”

33. The necessity to have some motive for the commission of the

offence and it’s absence in this case was also raised by the learned counsel for
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the accused. The relevance and importance of motive in cases based upon

circumstantial evidence was considered by the Apex Court in Shatrughan v.

Chhattisgarh, 2023 KHC 6720. In paragraph 34(a), the court held that:

“……..Once there is no eye – witness of the incident the
prosecution will have to establish a motive for the commission of
the crime inasmuch as in a case of direct evidence, motive may not
have a major role. If there is no motive setup or proved and there
are direct eye – witnesses, motive may loose its importance but in
the present case as admittedly no one has seen the occurrence, the
motive has an important role to play.”

34. In the decision in Ramanand @ Nandlal Bharti v. State of

Uttar Pradesh, AIR 2022 SC 5273, in paragraph 87, the Apex Court held

that:

“It is a settled principle of criminal jurisprudence that in a
case based on circumstantial evidence, motive for committing the
crime on the part of the accused assumes greater importance.
This Court in various decisions has laid down the principles
holding that motive for commission of offence no doubt assumes
greater importance in cases resting on circumstantial evidence
than those in which direct evidence regarding commission of
offence is available. It is equally true that failure to prove motive
in cases resting on circumstantial evidence is not fatal by itself.
However, it is also well settled and it is trite in law that absence
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of motive could be a missing link of incriminating circumstances,
but once the prosecution has established the other incriminating
circumstances to its entirety, absence of motive will not give any
benefit to the accused.”

35. In Premsingh v. State of NCT of Delhi, 2023 KHC 6002, the

Apex Court held thus in paragraph 17.1 :

“As noticed, motive, when proved, supplies additional link
in the chain of circumstantial evidence but, absence thereof
cannot, by itself, be a ground to reject the prosecution case;
although absence of motive in a case based on circumstantial
evidence is a factor that weighs in favour of the accused.”

36. In Indrajit Das v. State of Tripura, 2023 KHC 6187, the Apex

Court held in paragraph 15 that :

” In a case of circumstantial evidence, motive has an
important role to play. Motive may also have a role to play even
in a case of direct evidence but it carries much greater
importance in a case of circumstantial evidence than a case of
direct evidence. It is an important link in the chain of
circumstances.”

37. In the decision in Nizam and Another v. State of Rajasthan,

2016 (1) SCC 550, the Apex Court held that :

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“…………. If the prosecution is able to prove its case on
motive, it will be a corroborative piece of evidence lending
assurance to the prosecution case. But even if the prosecution
has not been able to prove the motive, that will not be a
ground to throw away the prosecution case. Absence of proof
of motive only demands careful scrutiny and deeper analysis
of evidence adduced by the prosecution.”

38. In Ajithsingh Harnamsingh Gujral v. State of Maharashtra,

2011 (14) SCC 401, in paragraph 14 the Apex Court held that:

“14. “It is true that motive is important in cases of
circumstantial evidence, but that does not mean that in all
cases of circumstantial evidence if the prosecution has been
unable to satisfactorily prove a motive its case must fail. It
all depends on the facts and circumstances of the case. As is
often said, men may lie but circumstances do not.”

39. In the light of the above decisions it can be seen that in a case

solely based on circumstantial evidence, 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. If the only

circumstance available is of last seen, it will not complete the chain of
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circumstances to record a finding that it is consistent only with the hypothesis

of guilt of the accused. If the prosecution proves that in the light of the facts

and circumstances of the case, there was no possibility of any other person

meeting or approaching the deceased at the place of incident or before the

commission of the crime, in the intervening period, the proof of last seen

together would be relevant evidence. Where time gap is long, it would be

unsafe to base the conviction solely on the “last seen theory” and it is safer to

look for corroboration.

40. If the chain of circumstances which is required to be established

by the prosecution is not established, the failure of the accused to discharge

the burden under Section 106 of the Evidence Act is not relevant. Similarly,

when the chain is not complete, falsity of the defence is not a ground to

convict the accused. In a case of direct evidence, motive may not have a

major role. But in a case based on circumstantial evidence, motive for

committing the crime on the part of the accused assumes greater importance.

Absence of motive could be a missing link of incriminating circumstances

and a factor that weighs in favour of the accused. Absence of proof of motive

only demands careful scrutiny and deeper analysis of evidence adduced by

the prosecution.

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41. It is also settled that in criminal cases if two views are possible,

the one in favour of the accused should be adopted. Like wise, however

strong a suspicion may be, it cannot take the place of a proof beyond

reasonable doubt. Now, we will have to consider and evaluate the various

circumstances brought out in this case, in the light of these guiding principles.

42. PLACE OF OCCURRENCE:- As per the prosecution case, the

place of occurrence is the bridge connecting the two places Kothad and

Moolampilly across the Moolampilly river as well as the portion of the river

below the bridge. The learned Public Prosecutor has relied upon the recovery

of a pair of footwear, bow and burst (പ ട യ) balloons from the above

bridge, to prove that it is the place from where the accused threw the children

in to the river. As per the prosecution case, MO1 bow belonging to Sherin,

MO2 footwear belonging to the accused and MO4 burst balloons held by

Antony Shown were recovered from the bridge. MO3 shoes were recovered

from the dead body of Antony Shown, while preparing Exhibit P8 inquest

report.

43. PW12 is an attestor to Ext.P10 scene mahazar. He would swear

that a pair of footwear and a bow were seen recovered by the police from the

bridge, at the time of preparing the scene mahazar. He identified MO1 as the
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above bow and MO2 shoes as the footwear recovered by the police from the

bridge. It appears that when PW12 was examined, instead of showing MO3,

by mistake, MO2 was shown to him. MO3 footwear was not shown to PW12

and it was not marked through him. Instead, MO3 footwear and MO4 burst

balloons were marked through PW20, the investigating officer. During the

cross-examination, PW20 deposed that he is not aware of MO3 shoes.

During the examination of PW2, the husband of the accused, as well as

PW11, the mother-in-law of the accused, these material objects were not

shown and as such, MOs1, 3 and 4 remain not proved. Therefore, there is no

evidence to show that MOs 1, 3 and 4 belonged to the children or that of the

accused. In the absence of any evidence to show that MOs1, 3 and 4 were

left behind by the accused as well as the deceased children, we cannot come

to the conclusion that they had gone to the above bridge before they were

found missing at about 8 p.m. on 4.12.2015. It will further go to show that in

this case there is no reliable evidence to prove that the place of occurrence is

the bridge connecting Kothad and Moolampilly river, as alleged by the

prosecution. In other words, the prosecution could not prove the place of

occurrence involved in this case.

44. As per the prosecution case, the accused had thrown the children
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into the Moolampilly river at about 8.00 pm on 4.12.2015. The children were

aged 7 and 4½ years. From the evidence of PW20 and from Ext.P10 scene

mahazar it is revealed that there is a distance of 24 feet from the Moolampilly

bridge into the river and the water level beneath the bridge has a depth of 18

feet. Exts.P11 and P12 are the post-mortem certificates in respect of the

children Sherin and Antony Shown proved by PW13 and 14 respectively.

From the evidence of PWs13 and 14 and from Exts.P11 and P12 it can be

seen that there was no ante-mortem injuries on the body of the children. They

would further swear that both the children died due to drowning.

45. TIME OF DEATH OF THE CHILDREN:- The time of death of

the children has much relevance in the facts of this case, as the prosecution is

solely relying upon circumstantial evidence. According to PW13 doctor, the

death of Sherin would have been occurred 24 to 30 hours prior to autopsy,

which was at 12.15 pm on 6.12.2015. If so, Sherin would have died between

6.15 am and 12.15 pm on 5.12.2015. According to PW14, the death of

Antony Shown would have taken place 36 to 40 hours prior to 1.15 pm on

7.12.2015. If so, Antony shown would have died between 9.15 pm on

5.12.2015 and 1.15 am on 6.12.2015. Therefore, there is a time gap of 15

hours between the probable time of death of Sherin and Antony Shown. It is
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to be noted that the above time of death of the children were brought out

during the chief examination of those witnesses. Further, the accused herself

was rescued from the river only between 7.30 and 8.00 am on 5.12.2015. If

the time of death of the children as deposed by PWs13 and 14 are believed, at

least Antony Shown was alive at 8.00 am on 5.12.2015 when the accused was

rescued from the river. Likewise, there is likelihood of Sherin also to be alive

at 8.00 am on 5.12.2015 when the accused was rescued, as her probable time

of death, according to PW13, is between 6.15 am and 12.15 pm on 5.12.2015.

In other words, as per the medical evidence, there was every chance that both

the children drowned after the accused was rescued from the river.

46. PW17, the doctor, who had examined the accused and issued

Ext.P13 wound certificate would swear that normally a person cannot remain

in water alive for 13 hours as it would result in the body temperature going

below normal and the same will result in systematic effects like abnormal

heart beats etc. Looking at the physical features given in Ext.P13, PW17

deposed that it is unlikely that the patient would have remained floating over

water over 13 hours. She would also swear that if a person falls into water

from a height of 30 to 50 feet, it is possible that the said person may sustain

internal injuries like cervical spine injury, provided the person did not know
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swimming. PW17 would further swear that if a person lies in water for more

than 10 minutes unconsciously, the person will certainly drown in water. If

the prosecution case that the children were thrown into the river at 8.00 p.m.

on 4.12.2015 is believed, it is to be further believed that Sherin was alive in

water for about 10- 16 hours before she died. Similarly, it is also to be

believed that Antony Shown was alive for 25-29 hours in water, after he was

thrown into the river at 8.00 pm on 4.12.2015. As per the prosecution case,

immediately on knowing about the missing of the accused and the children,

intensive search was conducted in the Moolampilly river by the fishermen

and police and in spite of that, they could find the accused till 8 a.m. on

5.12.2015 and the children on the succeeding days. If the prosecution has a

case that the accused had thrown the children from Moolampilly bridge into

the river at 8.00 p.m. on 4.12.2015, normally the children would have

immersed in water immediately. If so, they would also have drowned

immediately thereafter. Otherwise, they should have floated over the surface

of the water till they drowned. If they had floated over the surface of the

water as above, the persons who had conducted search operations would have

found out them alive.

47. MYSTERY:- Admittedly, intensive search was conducted in
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Moolampilly river since 8 p.m. on 4.12.2015, on the assumption that the

accused jumped into the river after throwing the children into it. The fact that

the persons who have conducted search in the river could not find the accused

till 8 a.m. on 5.12.2015 and the children, though they were alive till around

6.15 a.m. to 12.15 p.m. on 5.12.2015 and 9.15 p.m. on 5.12.2015 to 1.15 a.m.

on 6.12.2015 respectively, remains a mystery. The fact as to how the children

Sherin and Antony Shown were alive in water for more than 10 hours and 25

hours respectively, after they were allegedly thrown from a height of 24 feet

into the river containing water having a depth of 18 feet, also remains a

mystery. Those mysteries remain unresolved.

48. At the time of arguments, the learned Public Prosecutor would

argue that the time of death of the children suggested by PWs13 and 14 is

only an estimation and not the accurate time. However, those estimations

regarding the time of death are given by the doctors during the chief

examination and no attempt was made to show that those estimations

regarding the time of death stated by them is subject to any error and if so, to

what extent. Not even a suggestion was put them that the time of death

estimated by them is not correct. In the absence of even any such suggestion

put to PWs13 and 14, in the light of the available evidence, the time of death
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as stated by PWs13 and 14 can only to be believed.

49. ACCUSED WAS RESCUED AND BODY OF CHILDREN

RECOVERED FROM 3 DIFFERENT PLACES:- Though as per the

prosecution case the place of occurrence is Moolampilly bridge, the accused

was rescued and the body of the children were recovered from three different

places. It was argued by the learned counsel for the accused that the dead

body of the children were recovered from several kilometres away from

Moolampilly bridge. According to PW4, the accused was rescued from near

the Chinese fishing net of one Johnson. With regard to the distance from the

above Chinese fishing net and the place of occurrence, there is no reliable

evidence. According to PW16, the body of Antony Shown was recovered

from near a Chinese fishing net at Perikadavu. With regard to the distance

from the above Chinese fishing net and the Moolampilly bridge also, there is

no reliable evidence. It is interesting to note that the prosecution has not

adduced any evidence to prove the place from where the body of Sherin was

recovered. Anyway, these three places are far away from the alleged place of

occurrence claimed by the prosecution.

50. IF THE ACCUSED DID NOT JUMP INTO THE RIVER, HOW

DID SHE REACH THE RIVER?:- As per the FI statement as well as in the
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FIR, the accused jumped from the bridge into the river after throwing the

children into the river. However, at the time of arguments, the learned Public

Prosecutor would submit that during the investigation it was revealed that the

accused did not jump into the river at 8.00 p.m. on 4.12.2015. It was in the

above context no charge was raised against the accused under Section 309

IPC. At the same time, it is not disputed that the accused was rescued from

the river at about 8.00 a.m. on the next day on 5.12.2015. During the rescue

operation it was PW4 who first found the accused from near the Chinese

fishing net of one Johnson. At first he thought that the accused died. But

when he reached near her, he was scared on seeing her eyelids moving. On

confirming that she is alive, he along with the other persons engaged in the

searching operation, rescued her and took her to the nearby Aster Medicity

hospital. From the evidence of PW17 it is revealed that the accused was

discharged from the hospital on 7.12.2015.

51. ABSENCE OF INJURIES ON THE BODY OF ACCUSED

AND CHILDREN:- In order to substantiate the contention that the accused

did not jump into the river, the learned Public prosecutor has relied upon the

fact that when the accused was brought to the hospital, she was found to be

conscious and oriented. Further, there was no external or internal injuries on
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her body. It is true that when PW17 was examined, she deposed that if a

person who does not know swimming falls into deep water, from height, he is

likely to swallow water which may cause internal damage. Further, as

deposed by PW17, if a person floats over water for even 13 hours, he may

develop hypothermia, a state where the body temperature goes below normal,

resulting in systematic effects like abnormal heart beat etc.

52. If the above logic is applied to the accused, the same would

apply to Sherin and Antony Shown also, with more vigor, as they are just 4½

and 7 years old children. No ante-mortem injuries were found on their bodies

also. Further, as per the medical evidence, the children were alive at least till

6.15 a.m. and 9.15 p.m. on 5,12,2015. If, for the reason that the accused was

found conscious and oriented, with no external or internal injuries on her

body, at about 8 a.m. on 5.12.2015, it is believed that the accused did not

jump into the river, what is the guarantee that the children fell into the river

from such a height, especially when no ante-mortem injuries were found on

their body and they were alive at least till 6.15 a.m. and 9.15 p.m. on

5.12.2015 respectively?

53. WHERE WAS THE ACCUSED AND CHILDREN DURING

THE NIGHT ON 4.12.2015?:- If it is assumed that the accused did not jump
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into the river on 4.12.2015, the prosecution has a duty to explain as to how

she happened to reach the river near the Chinese fishing net of Johnson, at

about 8 a.m. on 5.12.2015, from where she was rescued by PW4 along with

others. Another question that naturally comes up in this context is, if the

accused did not jump into the river after throwing the children into it at 8 p.m.

on 4.12.2015, where was she during the whole night on 4.12.2015? The

prosecution has not offered any explanation with regard to the disappearance

of the accused during the period from 8.00 p.m. on 4.12.2015 till 8.00 am on

5.12.2015.

54. Similarly, since as per the medical evidence, Sherin died only

after 6.15 am on 5.12.2015 and Antony Shown died only after 9.15 p.m. on

5.12.2015, the prosecution has a duty to explain as to what happened to those

children during the period from 8 p.m. on 4.12.2015 till the time they died as

deposed by PWs 13 and 14. There is a time gap of more than 10 to 25 hours

in between the time of their disappearance and time of death as per the

medical evidence. With regard to that aspect also, no evidence is forthcoming

from the side of the prosecution.

55. ANTONY SHOWN DIED 13 HOURS AFTER THE ACCUSED

WAS RESCUED FROM THE RIVER:- As per the medical evidence, Antony
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Shown was alive at least till 9.15 pm on 5.12.2015, while the accused was

rescued from the river at 8 a.m. on the same day. If so, Antony Shown died at

least 13 hours after the accused was rescued from the river. Since it is

revealed that Antony Shown died more than 13 hours after the accused was

rescued from the river, the prosecution case that the child was thrown into the

river by the accused at 8.00 pm on 4.12.2015 could not be true, as according

to PW17, if a person floats over water for even 13 hours, he may develop

hypothermia, a state where the body temperature goes below normal,

resulting in systematic effects like abnormal heart beat etc. Further according

to her, if a person who does not know swimming falls into deep water, from

height, he is likely to swallow water which may cause internal damage.

Therefore, if Sherin aged 7 and Antony Shown aged 4 1/2 years were thrown

into the Moolampilly river from the bridge at about 8.00 pm on 4.12.2015, as

alleged by the prosecution, they would definitely have swallowed water,

would have sustained internal damage and died shortly thereafter. If not, they

should have floated over the water, till they died. In that case, Antony Shown

aged 41/2 years should have floated over the water for more than 25 hours,

which is quite impossible. If they had floated above the water, they would

have been traced out by the persons who had conducted intensive search in
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the river.

56. DEFENCE VERSION:- From the evidence of PW2, it is evident

that he had last seen the accused along with the children when they reached

near his Chinese fishing net at about 7 p.m. on 4.12.2015. During the chief

examination, he deposed that thereafter he accompanied the accused and the

children up to the road. According to him, he does not know as to what

happened to them thereafter.

57. On the side of the accused, a witness was examined as DW1 to

substantiate the defence version that after 7.30 p.m., the accused and the

children returned to the church and while the accused was talking with her in

the church, the children were found missing from the church. During the chief

examination PW4 deposed that on 4.12.2015, the accused along with the

children were found missing. He also deposed that during that night and also

on the next day he along with other persons searched for finding out the

accused as well as the children. However, subsequently when he was recalled

and cross-examined, he changed his version and stated that he had seen the

accused as well as the children between 7.30 and 7.45 p.m. on 4.12.2015 at

the church.

58. It was argued by the learned Public Prosecutor that PW4 has
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taken an entirely different stand during cross examination at the instance of

the accused to substantiate the defence version that after meeting PW2, the

accused along with the children returned to the church and did not go to

Moolampilly bridge. The trial court disbelieved the above evidence of PW4

as well as DW1 and held that the accused along with the children were

missing after they met PW2 at about 7 p.m. on 4.12.2015. The trial court also

found that since the children were last seen along with the accused, it is her

burden to explain as to what happened to the children. It was in the above

context, by relying upon Section 106 of the evidence Act, the trial court found

that in the absence of satisfactory explanation from the side of the accused, it

is to be presumed that she had committed murder of the children by throwing

them into the river.

59. FINDINGS ON SURMISES BY THE TRIAL COURT:- In the

light of the fact that the time of death of the children is not tallying with the

prosecution case that the accused had thrown the children into the

Moolampilly river at about 8 p.m. on 4.12.2015, the trial court in paragraph

No.34 of the judgment observed that, “It is probable that they were thrown

into the water in the morning on 5.12.2015 which was simultaneous with the

time when the accused was also found in the water.” The above finding of the
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trial court that the accused might have thrown the children into the water in

the morning on 5.12.2015, is against the prosecution case that the children

were thrown into the river from the bridge at 8 p.m. on 4.12.2015. Since the

prosecution has no case that the time of incident was on the morning in

5.12.2015, such an observation made by the trial court is not supported by

any evidence and only based on the surmises.

60. In the same paragraph, there is a further finding by the trial court

that both the children drowned in the river between 8 p.m. on 4.12.2015 and

8 a.m. on 5.12.2015. As we have already noted above, the probable time of

death of Antony Shown is between 9.15 pm on 5.12.2015 and 1.15 a.m. on

the next day. In the light of the above medical evidence, the finding of the

trial court that both the children died between 8 a.m. on 4.12.2015 and 8 a.m.

on 5.12.2015 is also not in tune with the evidence available on record.

61. INVOLVEMENT OF ACCUSED RULED OUT:- The trial court

found that since the children were last seen along with the accused, she is

bound to explain as to what happened to the children. As per the medical

evidence, Antony Shown died after 9.15. p.m. on 5.12.2015 while the accused

was rescued from the river much earlier, at 8 a.m. on the same day.

Immediately the accused was taken to the hospital and she was discharged
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from there only on 7.12.2015. Since Antony Shown drowned at one place,

more than 13 hours after the accused was rescued from another place in the

river, the above crucial circumstance alone is sufficient to rule out the

involvement of the accused in the death of Antony Shown. In as much as the

accused has no role in the death of Antony Shown, it is to be further held she

has no role in the death of Sherin also, as both of them were found missing

together, at the same time.

62. ABSENCE OF MOTIVE:- The offence alleged in this case being

murder of 2 innocent minor children is very heinous and at the same time,

very serious in nature. In order to murder 2 children of 7 and 4 ½ years there

should be some strong motive. When the accused is the mother who gave

birth to those children, the motive should be more strong. The prosecution as

well as the accused are unanimous in the stand that the accused is of sound

mind. In order to rule out the possibility of the unsoundness of mind of the

accused, the prosecution has caused her to be examined by PW18, Consultant

in Internal Medicine, Aster Medicity Hospital, Ernakulam. PW18 examined

the accused on 5/12/2015 and her psychological assessment was made and no

major psychiatric illness detected.

63. Even according to the prosecution case, the motive behind the
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commission of offence is the difference of opinion between the accused and

her mother-in-law namely PW11. As per the prosecution case, PW2, her

husband scolded her in the evening on 2.12.2015. It was followed by some

wordy altercation between the accused and PW2. At that time, her mother-in-

law also scolded her. Thereafter, PW11 did not talk to the accused or dine

with her, but showed anger towards the accused. In the above background,

when the accused along with the children were about to go to the church for

attending the festival therein, PW11 threatened to consume poison. As per the

prosecution case, in the above circumstance, in order to wreak vengeance to

PW11, the accused murdered her children by throwing them into the river,

after attending the festival in the church.

64. At the time of evidence, PW2 would swear that he was leading a

happy marital life with the accused. PW11 also deposed that there was no

dispute between herself and the accused. PW9, a cousin of PW2 also deposed

that the accused and PW2 were living happily. Therefore, even to prove the

alleged animosity between the accused and PW11, there is no evidence in this

case. In short, in this case the prosecution could not prove any motive at all,

much less any strong motive. The motive alleged by the prosecution, even if

proved, was too weak, to worth consideration. We cannot believe, even for a
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moment that a mother for such a silly reason would throw her own children

into the river and murder them. In the facts of this case, absence of any valid

motive for the accused to murder her own children assumes much

significance.

65. LAPSES ON THE PART OF THE PROSECUTION:- Though as

per the prosecution case, the place of occurrence was Moolampilly bridge, as

we have already noted above, the prosecution could not prove the place of

occurrence. The prosecution also has failed to prove the place from where

the dead body of Sherin was recovered. Though as per the prosecution case

the accused did not jump into the river after throwing the children into it, they

could not explain the circumstances under which the accused was found alive

in the river, near the Chinese fishing net of Johnson at about 8 a.m. on

5.12.2015. The prosecution also failed to explain as to what happened to

Sherin from 8 p.m. on 4.12.2015, till she died between 6.15 a.m. on

5.12.2015 and 12.15 p.m. on that day. Similarly the prosecution has failed to

explain as to what happened to Antony Shown between 8 p.m. on 4.12.2015

and till he died between 9.15 p.m. on 5.12.2015 and 1.15 a.m. on 6.12.2015.

The failure of the prosecution to explain those crucial points casts serious

doubts on the veracity of the prosecution case. For the very same reasons, the
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involvement of any third person in the drowning of the children could not be

ruled out.

66. PROBABILITY OF DEFENCE VERSION:- The explanation

given by the accused regarding the missing of children is to be evaluated in

the light of the serious lapses on the part of the prosecution. In the absence of

evidence to show that the accused had thrown the children into the river from

the Moolampilly bridge, her explanation to the effect that after meeting PW2

she went to the church and the children were found missing from the church

could not be completely disbelieved. It is true that PWs 1, 5, 8, 9, 10 and 12

deposed at the time of evidence that after 8 p.m. on 4.12.2015, the accused

was also found missing along with the children. However, none of them

knew from when the accused and the children were found missing. The trial

court observed that if the accused was available and the children alone were

found missing, the said fact would have been known to her family members

and friends and also that the said fact would have been divulged to the police.

67. Even if for argument sake it is assumed that on 4.12.2015 after 8

p.m. the accused was also missing as deposed by PWs 1, 5, 8, 9, 10 and 12,

the same will not invalidate the defence version that the children were found

missing from the church. As we have already noted above, since it is revealed
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that Antony Shown died at one place, more than 13 hours after the accused

was rescued from a different place in the river and while she was admitted in

the hospital, there is no proximity of time and place so as to attract the last

seen theory compelling the accused to offer a satisfactory explanation

regarding the factum of missing of the children from her custody.

68. Therefore, the defence version that the children were found

missing from the church does not interdict the evidence of the prosecution

witnesses that the accused was also found missing after 8 p.m. on 4.12.2015,

as both of them can co-exist. The evidence of PW4 that at about 7.30-7.45

p.m. on 4.12.2015 he had seen the accused at Pizhala church assumes

significance in this context. Though during the chief examination PW2

deposed that after meeting him at about 7 p.m. on 4.12.2015 the accused and

children returned and that he accompanied them up to the road, at another

stage he deposed that he thought that they went to the church to attend the

festival. During the cross-examination he deposed that he had accompanied

them up to the church. In as much as there is no evidence to prove the exact

place from where the children were found missing, the version of the accused

that the children were found missing from the church could not be

disbelieved. In the light of the fact that accused was found at one place and
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the bodies of the two children were found in two different places and the time

of death of two children has a time gap of 15 hours, there is reason to suspect

that both the children have not fallen (or thrown) into the river at the same

time. Moreover, as we have already noted above, the time of death of Antony

Shown is 9.15 p.m. as revealed from the medical evidence is true, there is

absolutely no chance for the accused to have any involvement in the death of

Antony Shown.

69. CONCLUSION ON POINT NO.1:- The circumstances brought

in evidence by the prosecution, which are discussed above do not form a

chain of evidence so complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and would show that

in all human probability, the act in the case on hand must have been done by

the accused. On the other hand, the circumstances brought in evidence leaves

reasonable ground for the conclusion leading to the innocence of the accused.

Since Antony Shown died more than 13 hours after the accused was rescued

from the river, involvement of third persons in the drowning of the children

could not be ruled out. In such a situation, the accused is entitled to get the

benefit of doubt. In the light of the above discussions, we are constrained to

hold that the prosecution could not prove beyond reasonable doubt that it was
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the accused, who had murdered her children by throwing them into the river

from the Moolampilly bridge, as alleged. Point No.1 answered accordingly.

70. Point No.2: In the light of the answer to point No.1, this point

does not arise for consideration.

71. In the light of the findings on Point Nos. 1 and 2 above, this

Criminal appeal filed by the accused is liable to be allowed by setting aside

the impugned judgment of conviction and sentence.

In the result, the appeal is allowed. The impugned judgment of

conviction and sentence passed by the Additional Sessions Judge, North

Paravur in S.C. No.430 of 2016 is set aside. The accused is found not guilty

and she is acquitted under section 386 (b)(i) of Cr.P.C. She is set at liberty

cancelling her bail bond.

Sd/-

P.B. SURESH KUMAR, JUDGE

Sd/-

C. PRATHEEP KUMAR, JUDGE

sou/Mrcs/31.8.

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