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 1 2024:KER:71180 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 2 2024:KER:71180 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.