# VAHITHA v. STATE OF TAMIL NADU

- **Citation:** [2023] 3 S.C.R. 942
- **Court:** Supreme Court of India
- **Decided:** 2023-02-22
- **Case number:** Criminal Appeal No. 762 of 2012
- **Bench:** Dinesh Maheshwari, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vahitha-v-state-of-tamil-nadu-37011
- **Pages:** 43

## Headnote

Penal Code, 1860 - s.302 - Conviction under - Strangulation
of child - Prosecution case that appellant strangulated her five
year old child to death while PW-1 (mother-in-law of appellant)
had gone out of the house - As per the FIR, when PW-1 came back
to the house, she saw the appellant tie the outer end of her saree
tightly around the neck of the child - During her testimony PW-1
stated that she found the appellant sitting silently next to the
deceased child when she came back to the house - Upon hearing
PW-1 shout; daughters of PW-1 i.e. PW-2 and PW-3 also arrived at
the scene of occurrence - Two independent witnesses PW-4 and
PW-5 (landlord and neighbour of PW-1) also testified that they saw
the appellant next to the body of the deceased child - According to
post-mortem report, cause of death of child was asphyxia due to
strangulation - However, PW-6- father of appellant deposed that
appellant was with him at his village and that he accompanied her
back to in-laws place after receiving information about death of
child - Trial Court convicted appellant u/s. 302 and rejected plea
of alibi - High Court affirmed findings of trial Court and held that
appellant was last person to be seen with child, hence onus was on
appellant to explain how death occurred - On appeal, held: Plea
of alibi rejected - No evidence adduced to prove that appellant
was not present at time and place of incident; two independent
witnesses testified that they saw the appellant near the body of the
deceased child; appellant arrested on the same day of the incident
at bus stand - Although, there were discrepancies in versions of
PW-2 between the complaint and her assertions before the Court
such discrepancies are normal and natural or the result of her want
of proper comprehension - Trial Court rightly analysed matter and
observed that PW-1 was deposing from memory one year from
incident hence discrepancies would not result in rejection of her
testimony - Further, saree recovered from appellant had blood stains
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- Motive of appellant to not live in matrimonial house and thus
committing offence cannot be ruled out looking to fact that she was
living with her parents and was only forced to come to in-laws place
for the upbringing of the child - Further, the appellant has not
given any explanation in her statement u/s. 313 CrPC apart from
denying the circumstances put to her - Burden u/s. 106 of the
Evidence Act operates heavily against appellant - Alternative
submission that case would be of culpable homicide not amounting
to murder rejected.
Dismissing the appeal, the Court
HELD: 1. The Trial Court and the High Court have
examined the evidence on record and have rejected this plea of
alibi with reference to the significant features of the case that
there is no corroborative evidence on record, to the assertion
made by PW-6, that on 20.06.2007, he took his daughter back to
his village Kolakkudi. The accused-appellant did not adduce any
evidence to prove that she was not present at her mother-inlaw's place, at the time and place of incident. Apart from the fact
that PW-1, PW-2 and PW-3 consistently maintained their versions
that the appellant was available at the time and place of incident,
two independent witnesses, PW-4, landlord of PW-1 and PW-5,
neighbour of PW-1 testified that they saw the appellant sitting
with or near the body of the deceased child immediately after,
and at the place of, the incident. Although there appears to be no
reason to discard the testimonies of PW2 and PW-3 but even if
for the sake of argument their testimonies are left aside for being
directly related witnesses who might not be favourably disposed
towards the appellant, there appears no reason to disbelieve and
discard the testimonies of PW-4 and PW-5. Nothing even remotely
has been shown as to why PW-4 and PW-5 would be interested in
testifying about the presence of appellant around the time, and at
the place of incident. [Para 15.1][981-B-D]
2. Apart from

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[2023] 3 S.C.R.
 [2023] 3 S.C.R. 942
942
VAHITHA
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 762 of 2012)
FEBRUARY 22, 2023
[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]
Penal Code, 1860 - s.302 - Conviction under - Strangulation
of child - Prosecution case that appellant strangulated her five
year old child to death while PW-1 (mother-in-law of appellant)
had gone out of the house - As per the FIR, when PW-1 came back
to the house, she saw the appellant tie the outer end of her saree
tightly around the neck of the child - During her testimony PW-1
stated that she found the appellant sitting silently next to the
deceased child when she came back to the house - Upon hearing
PW-1 shout; daughters of PW-1 i.e. PW-2 and PW-3 also arrived at
the scene of occurrence - Two independent witnesses PW-4 and
PW-5 (landlord and neighbour of PW-1) also testified that they saw
the appellant next to the body of the deceased child - According to
post-mortem report, cause of death of child was asphyxia due to
strangulation - However, PW-6- father of appellant deposed that
appellant was with him at his village and that he accompanied her
back to in-laws place after receiving information about death of
child - Trial Court convicted appellant u/s. 302 and rejected plea
of alibi - High Court affirmed findings of trial Court and held that
appellant was last person to be seen with child, hence onus was on
appellant to explain how death occurred - On appeal, held: Plea
of alibi rejected - No evidence adduced to prove that appellant
was not present at time and place of incident; two independent
witnesses testified that they saw the appellant near the body of the
deceased child; appellant arrested on the same day of the incident
at bus stand - Although, there were discrepancies in versions of
PW-2 between the complaint and her assertions before the Court
such discrepancies are normal and natural or the result of her want
of proper comprehension - Trial Court rightly analysed matter and
observed that PW-1 was deposing from memory one year from
incident hence discrepancies would not result in rejection of her
testimony - Further, saree recovered from appellant had blood stains
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- Motive of appellant to not live in matrimonial house and thus
committing offence cannot be ruled out looking to fact that she was
living with her parents and was only forced to come to in-laws place
for the upbringing of the child - Further, the appellant has not
given any explanation in her statement u/s. 313 CrPC apart from
denying the circumstances put to her - Burden u/s. 106 of the
Evidence Act operates heavily against appellant - Alternative
submission that case would be of culpable homicide not amounting
to murder rejected.
Dismissing the appeal, the Court
HELD: 1. The Trial Court and the High Court have
examined the evidence on record and have rejected this plea of
alibi with reference to the significant features of the case that
there is no corroborative evidence on record, to the assertion
made by PW-6, that on 20.06.2007, he took his daughter back to
his village Kolakkudi. The accused-appellant did not adduce any
evidence to prove that she was not present at her mother-inlaw's place, at the time and place of incident. Apart from the fact
that PW-1, PW-2 and PW-3 consistently maintained their versions
that the appellant was available at the time and place of incident,
two independent witnesses, PW-4, landlord of PW-1 and PW-5,
neighbour of PW-1 testified that they saw the appellant sitting
with or near the body of the deceased child immediately after,
and at the place of, the incident. Although there appears to be no
reason to discard the testimonies of PW2 and PW-3 but even if
for the sake of argument their testimonies are left aside for being
directly related witnesses who might not be favourably disposed
towards the appellant, there appears no reason to disbelieve and
discard the testimonies of PW-4 and PW-5. Nothing even remotely
has been shown as to why PW-4 and PW-5 would be interested in
testifying about the presence of appellant around the time, and at
the place of incident. [Para 15.1][981-B-D]
2. Apart from the foregoing, fact of the matter also remains
that the appellant was arrested on 21.06.2007 i.e., the very day
of the incident, albeit nine hours after the incident, at the bus
stand. However, when the theory propounded by PW-6 that the
appellant had travelled to his village with him on 20.06.2007 and
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then travelled back to her mother-in-law's place on 21.06.2007
is discarded, all other facts taken together lead to the logical
conclusion that the plea of alibi is required to be rejected. [Para
15.2][981-E-F]
3. Another major factor highlighted and elaborated by the
appellant relates to certain discrepancies appearing in the
versions of PW-1, as stated in the complaint made to the police
compared with her assertions before the Court. No doubt, there
had been some such discrepancies in the matter which, at the
first blush, give rise to certain doubts as to whether the testimony
of PW-1 could be believed or not. However, a close look at the
record makes it clear that the discrepancies, said to be of
contradictions in the versions given by PW-1, could only be
considered to be normal and natural or being the result of her
want of proper comprehension. [Para 16][981-G-H; 982-A]
4. PW-1 is none other than mother-in-law of the appellant
and the grand-mother of the victim child. The first discrepancy in
the matter is that, as per the version in the complaint, she left
her house in the morning to buy idli without taking money, but in
her deposition, she stated that appellant gave her Rs. 100 and
asked her to get idli. Another major discrepancy surfaces when
it is noticed that in the complaint, she asserted that the appellant
ran away from the scene of occurrence but in her deposition, she
stated that the appellant was taken to the police station. Thirdly,
what she saw and did upon reaching the house after visiting the
market is also stated differently in the complaint and in the
deposition. The question is as to whether her testimony and the
prosecution case be rejected altogether because of these
discrepancies. [Para 16.1][982-B-C]
5. The Trial Court has rightly analysed the matter and has
rightly observed that when PW-1, sixty-five years of age, was
deposing before the Court from her memory after one year from
the incident, such discrepancies would not result in rejection of
her testimony altogether. The relevant features emanating from
her assertions in the complaint as also in the statement are that
she had gone out to purchase eatables in the morning while
leaving the victim child with the appellant; and after coming back,
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found the child dead, with the appellant being with the child. As
to whether she had gone to the market after being given money
by the appellant or without taking money, in our view, cannot
override entire of her testimony as also the testimonies of other
witnesses. Further, the said witness PW-1 seems to have
obviously lost the track of facts when she asserted in her
deposition that the appellant was taken to the police station after
the incident. It has clearly been established on record that the
appellant was arrested in the late afternoon at the bus stand and
it has nowhere been shown if she was taken to the police station
immediately after the incident. A suggestion made in that regard
to the official witness PW-10 has also been specifically denied by
her. The said discrepancy in the version of PW-1 is also of no
relevance and the concurrent findings of the two Courts cannot
be displaced on that count. Even the version given in the
complaint as if PW-1 saw the appellant strangling her child seems
to be an overt assertion immediately after the incident. The other
witnesses who had reached the scene of crime including the
independent witnesses PW-4 and PW-5 have consistently
maintained that the appellant was available with the dead body of
the child at the place of, and immediately after, the incident. [Para
16.2][982-D-H; 983-A]
6. Taking an overall view of the matter, this Court does not
find any reason that entire prosecution case be disbelieved and
discarded because PW-1 has not projected the case in a consistent
manner. Apart from the private witnesses, all the relevant facts
have been duly established in the testimonies of the official
witnesses too. The discrepancies as noticed in the present case,
at the most, could be said to be of minor contradictions or
inconsistencies or embellishments of trivial nature; and are
reasonably referable to the reasons recounted by this Court in
Bharwada Bhoginbhai Hirjibhai for which, the minor discrepancies
do occur in evidence and excessive importance cannot be
attached to them [Para 16.3][983-B-C]
7. The submission that the assertion about the appellant
having strangled the victim, by pressing her saree around the
neck, does not correlate with the post-mortem examination is
also untenable. As noticed, the medical officers have clearly
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established that the child suffered strangulation with a wound
measuring 20 cm in length and 2 cm in breadth around the neck
and with thyroid cartilage bone having been fractured. PW8 also
opined that if outer end of the saree was twisted and put around
the neck and the person was strangled, there was a chance of
such a wound. The saree in question had been duly recovered
from the appellant and was said to be carrying blood stains. [Para
17][983-D-E]
8. In the given set of facts and circumstances, the motive
as suggested by the prosecution, i.e., the desire of the appellant
not to live in her matrimonial house and, on being forced to do so
only because of the child, she being not interested in the existence
of the child, though presents a somewhat difficult proposition but,
at the same time, cannot be ruled out altogether, particularly
looking to the fact that, until 18.06.2007, the appellant was living
with her parents and she was forced to come to Perambalur for
the purpose of upbringing of the child with the family of her
husband. [Para 18][983-F]
9. Another submission made on behalf of the appellant, that
her husband has not been examined by the prosecution, does
not take her case any further. Her husband was not shown to be
in the country at the time of incident and he was not a direct
witness in relation to the material facts to be established by the
prosecution. Other way round, if at all the appellant considered
him to be a material witness, nothing prevented her from making
a prayer to the Court for his examination and nothing prevented
her from making specific submissions in that regard during her
examination under Section 313 CrPC. [Para 19][983-G-H; 984A]
10. As regards the statement under Section 313 CrPC, the
appellant has not given any explanation whatsoever and has not
made any statement except denying the circumstances put to
her. In the facts of the present case, when the prosecution
evidence categorically established the fact that the victim child
was last seen alive with the appellant only; she was required to
explain the circumstances leading to the demise of the child. Upon
her failure to do so and failure to give the explanation with regard
to the circumstances under which death may have taken place,
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burden of Section 106 of the Evidence Act operates heavily against
the appellant, as noticeable from the decisions above referred,
particularly in the cases of Satpal and Sabitri Samantaray . [Para
20][984-B-C]
11. The submissions made in the alternative that in the given
set of circumstances, the present case could only be of culpable
homicide not amounting to murder has only been noted to be
rejected. Even if it be taken that there was a quarrel of the
appellant with her mother-in-law (PW-1) in the morning of the
date of incident because the appellant wanted to go the place of
her father, it cannot be said that such a quarrel would make it a
case of grave and sudden provocation. The circumstances as
proved on record, and the manner of commission of crime, make
it clear that the present case cannot be brought under any of the
Exceptions of Section 300 IPC; and conviction and sentencing of
the appellant under Section 302 IPC cannot be faulted. [Para
22][984-E-F]
Pappu v. The State of Uttar Pradesh (2022) 10 SCC
321; Mekala Sivaiah v. State of Andhra Pradesh (2022)
8 SCC 253; Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
Hanumant v. State of Madhya Pradesh AIR 1952 SC
343 : [1952] SCR 1091; Shyamal Ghosh v. State of
West Bengal (2012) 7 SCC 646 : [2012] 10 SCR 95;
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
(1983) 3 SCC 217 : [1983] 3 SCR 280; Gangadhar
Behera v. State of Orissa (2002) 8 SCC 381 : [2002] 3
Suppl. SCR 183; Gangabhavani v. Rayapati Venkat
Reddy (2013) 15 SCC 298 : [2013] 14 SCR 155;
Ramnaresh v. State of Chhattisgarh (2012) 4 SCC 257
: [2012] 3 SCR 630; Satpal v. State of Haryana (2018)
6 SCC 610; Satye Singh and Anr. v. State of
Uttarakhand (2022) 5 SCC 438; Sabitri Samantaray v.
State of Odisha 2022 SCC OnLine SC 673 - relied
on.
Krishna Mochi v. State of Bihar (2002) 6 SCC 81 :
[2002] 3 SCR 1; Leela Ram v. State of Haryana (1999)
9 SCC 525 : [1999] 3 Suppl. SCR 435; State of
VAHITHA v. STATE OF TAMIL NADU
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Rajasthan v. Kashi Ram (2006) 12 SCC 254 : [2006] 8
Suppl. SCR 501; State of Haryana v. Bhagirath (1999)
5 SCC 96 : [1999] 3 SCR 529; State of Rajasthan v.
Kalki (1981) 2 SCC 752 : [1981] 3 SCR 504 - referred
to.
Case Law Reference
[1985] 1 SCR 88
relied on
Para 8.6
[2012] 10 SCR 95
relied on
Para 8.6
[2012] 3 SCR 630
relied on
Para 8.6
[1952] SCR 1091
relied on
Para 12.1
[1983] 3 SCR 280
relied on
Para 9.1
[2002] 3 SCR 1
referred to
Para 9.1
[1999] 3 Suppl. SCR 435
referred to
Para 9.1
[2006] 8 Suppl. SCR 501
referred to
Para 9.2
[2002] 3 Suppl. SCR 183
relied on
Para 9.4
[1999] 3 SCR 529
referred to
Para 9.4
[2013] 14 SCR 155
relied on
Para 9.5
[1981] 3 SCR 504
referred to
Para 9.5
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.762 of 2012.
From the Judgment and Order dated 09.03.2010 of the High Court
of Madras in CRLP No.01 of 2010.
Chanchal Kumar Ganguli, Ms. Vandana Tiwari, Anurag Rana,
Advs. for the Appellant.
Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,
Sanjeev Kumar Mahara, Advs. for the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. This appeal by special leave is directed against the judgment
and order dated 09.03.2010 in Criminal Appeal No. 1 of 2010, whereby
the High Court of Judicature at Madras has dismissed the appeal against
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the judgment of conviction and order of sentence dated 15.10.2009, as
passed by the Sessions Judge, Mahila Court, Perambalur in Sessions
Case No. 9 of 2008, holding the appellant guilty of the offence punishable
under Section 302 of the Indian Penal Code, 18601 and awarding her the
punishment of imprisonment for life and fine of Rs. 2,000/- with default
stipulations.
2. In a brief outline, it could be noticed that in this case, the
appellant has been convicted of the offence of murder of her five-yearold child in the house of her mother-in-law at Perambalur in the morning
of 21.06.2007. According to the prosecution case, the appellant's husband
was living abroad for earning livelihood and the appellant was mostly
living with her father at Kolakkudi. However, on being forced to live
with her mother-in-law for the purpose of upbringing and education of
the child, she found the child to be an obstacle in her desire to live separate
and hence, strangulated the child to death when her mother-in-law had
gone out of the house. It was alleged that the appellant was last seen
with the child and after having killed the child, when her mother-in-law
and other witnesses reached the scene of crime, she ran away and was
apprehended in the late afternoon at Perambalur New Bus Stand. As
per the post-mortem report, the cause of death of the child was asphyxia
because of strangulation. In the trial, all but one prosecution witnesses
supported the accusations against the appellant. Only the father of the
appellant deposed to the contrary and asserted that at the relevant point
of time, the appellant was with him at Kolakkudi and he accompanied
her to Perambalur after receiving information about death of the child.
After appreciation of evidence, the Trial Court, in its judgment dated
15.10.2009, rejected the plea of alibi taken on behalf of the accusedappellant and held proved that the victim child died of asphyxia because
of strangulation and was last seen alive with the appellant, who failed to
explain the circumstances in which the child died. Hence, the appellant
was convicted of the offence punishable under Section 302 IPC and
was sentenced accordingly. In appeal, the High Court concurred with
the findings of the Trial Court while holding that the ingredients
establishing culpability of the appellant were clearly established on record.
2.1. In this appeal, the concurrent findings of the two Courts have
been questioned essentially with reference to certain discrepancies in
the version of the prosecution witnesses and on the ground that the
1 'IPC', for short.
VAHITHA v. STATE OF TAMIL NADU
[DINESH MAHESHWARI, J.]
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prosecution has failed to establish a chain of cogent circumstances which
could lead to the only hypothesis that the appellant had killed her own
child. These submissions have been countered with reference to the
evidence of the prosecution and findings of the two Courts.
3. Having regard to the submissions made and the questions arising
for determination, we may take note of the relevant factual and
background aspects as follows:
3.1. In this case, the First Information Report2, bearing No. 328
of 2007 was registered at Perambalur Police Station at around 9.00 a.m.
on 21.06.2007 on the information furnished by PW-1 Basheera, motherin-law of the appellant, about killing of the victim child by her own mother,
that is, the appellant. The relevant contents of the FIR, said to have been
scribed by PW-10 Subbulakshmi, SI, Perambalur, read as under:3 -
"...As my grand daughter is 5 years old, my son had spoken from
Riyat to Kolakkudi and said that she has to go to Perambalur and
stay in my house and educate the child. Hence, Vahida was brought
by her father on 18.6.07 along with grand daughter Farhana and
dropped in my house at Perambalur. For two days after her arrival
she did not properly have the food and also did not speak to me
properly and my daughter-in-law Vahida picked up quarrel with
me and was telling me that she is going to Kolakkudi. As I had
warned her not to go to Kolakkudi, she was telling that only because
of this child, I could not live peacefully. My husband is suspecting
me. You are also not allowing me to go to Kolakkudi. Only if I
finish off this child, I shall live peacefully. I, my daughter Mumtaz,
my 2nd daughter-in-law Asha, and the Kamala, my neighbour
together had warned her on the night of 20.6.2007. On 21.06.2007
at about 8.00 A.M. I said that I will go and get idli for the child.
She said that I could not educate my child here and she wanted to
go to Kolakkudi. Hence, there was a quarrel picked up between
me and my daughter-in-law Vaheetha. I told her let us see and
went to get the idli. By that time, my daughter Mumtaz and my
daughter-in-law Asha came to see me. I being left the home for
buying idli without taking money went along with them came to
house to take the money. By that time my daughter-in-law
Vaheetha, was tying the neck of my grand daughter Farhana who
2 'FIR', for short.
3 The extractions in this judgment are from the translated copies placed on record.
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is aged five years with the outer end of a saree (mundanai) portion
of her saree and was holding it tight. After seeing this I shouted
why are you killing my grandchild. Besides, holding my grandchild's
neck with the saree and killing her, she had pushed us and ran
away through the entrance. The neighbours Kamala and
Jayaraman came running there, after hearing my scream. I touched
the child. She was dead..."
3.2. After registration of the FIR (Ex.P10), PW-12 Thiru G.
Ayyanar, the first Investigating Officer4 reached the place of occurrence,
photographs of the dead body (Ex. P11) were taken; the rough sketch
(Ex. P12) and inquest report (Ex. P13) were prepared; and the dead
body was sent for post-mortem examination. As per the post-mortem
report (Ex. P5), there was a wound around the neck of the victim child
measuring 20 cm in length and 2 cm in breadth; and victim died due to
asphyxia because of strangulation.
3.3. According to the first IO, PW-12 Thiru G. Ayyanar, the
appellant was arrested at about 5.00 p.m. near a ladies washroom at the
Perambalur New Bus Stand, i.e., approximately nine hours after the
occurrence. It was alleged that after her arrest, the appellant identified
the saree by which the child was strangulated; that the saree allegedly
carrying blood-stains was seized in the presence of attesting witnesses;
and that following her arrest, the appellant made a confessional statement
that was recorded by PW-12 in the presence of witnesses. Later on, the
investigation was taken over by PW-14 D. Sivasubramanian, who filed
the charge-sheet for the offence under Section 302 IPC against the
appellant. After committal, and upon denial of charge by the appellant,
the case was tried as Sessions Case No. 9 of 2008 by the Sessions
Judge, Mahila Court, Perambalur.
4. In trial, a total of fourteen witnesses were examined by the
prosecution. The first witness PW-1 Basheera, mother-in-law of the
appellant and the informant, was examined as the key witness related
with the occurrence. Four other witnesses, PW-2 Mumtaz, daughter of
PW-1; PW-3 Asha Begum, other daughter-in-law of PW-1; PW-4
Sharfunisha, landlord of PW-1; and PW-5 Thiru-Jothi, neighbour of PW1 were claimed to be the witnesses who reached the scene of crime
immediately after the occurrence. PW-8 Dr. Saravanan and PW-13 Dr.
4 'IO', for short.
VAHITHA v. STATE OF TAMIL NADU
[DINESH MAHESHWARI, J.]
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Karthikeyan A. testified respectively to the post-mortem report and the
report with respect to the thyroid cartilage bone of the victim child. PW9 Devaraj, Village Administrative Officer and PW-7 Sadiq Ali were
examined as attesting witnesses related with the process of investigation.
PW-10 Subbulakshmi had recorded the statement of PW-1 and scribed
the FIR whereas PW-11 Mohammed Munwar Khan was the
photographer who had taken photographs at the scene of occurrence.
As noticed, PW-12 Thiru G. Ayyanar carried out the initial investigation
whereas PW-14 D. Sivasubramanian, SI, Perambalur completed the
investigation and filed charge-sheet. Apart from these witnesses who
supported the prosecution case, there had been another witness PW-6
Jamal Mohammed, father of the appellant, who stated to the contrary
and asserted that the appellant was with him at his village Kolakkudi. In
other words, this witness supported the appellant's plea of alibi.
5. Though elaboration of the entire prosecution evidence is not
necessary for the purpose of the present appeal, but having regard to
the contentions urged, we may take note of the relevant part of
depositions, particularly in reference to certain inconsistencies/
discrepancies in the assertions of the prosecution witnesses as also in
reference to the appellant's plea of alibi.
5.1. PW-1 Basheera has been the key witness for the prosecution.
In her testimony, she stated that her son Abdul Raheem had married the
appellant; that a female child was born to the appellant after the marriage;
and that Abdul Raheem was sending all the money earned by him to the
appellant. She further stated that Abdul Raheem had called her to say
that his daughter should be admitted in a school in Perambalur and he
would send her money for that purpose; and subsequently, on 18.06.2007,
PW-6 Jamal Mohammed, father of the appellant, dropped the appellant
and the child to the house of PW-1 with request to educate the child in
Perambalur since Abdul Raheem was allegedly not sending the appellant
any money. She stated that on the morning of 21.06.2007, the appellant
gave her Rs. 100 and asked her to buy idli; that when she came back to
the house, the appellant was sitting silently next to the child; and that
upon asking, the appellant told her that she had killed the child. During
cross-examination, this witness stated that she went to the police station
with the appellant immediately after the occurrence. The relevant parts
of her statement read as under: -
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"......About 10 months ago, 18th day of 6th month, my daughterin-law's father Jamal Mohammed had brought his daughter, the
margin accused and our grand child to my house at Perambalur.
My daughter-in-law's father was telling his daughter, the margin
accused, that on the next day, 19th he would be leaving to his
village and she has to take care of everything. The margin accused
told her father that she would take care. On the next day 19th, the
accused's father went back to his village. On the next day to that,
on 20th Wednesday we cooked and had our food and were available
in the house of my daughter Mumtaz. ..... I am residing separately
after 4 or 5 houses from her house. (the witness repeats the same.)
I told the margin accused to come to my house along with her
daughter and we would admit the grand daughter in school. The
accused said OK for the same and on that day Wednesday, night,
I, the accused and the grand daughter Farhana three of us went
to the house wherein I am staying as a tenant for our sleep. In the
morning of the next day, at about 6.00 A.M. I went to get the
society milk. ... I bought the milk and made tea and gave to her.
Thereafter I told her that I would get meat. For that the margin
accused said that no need of getting meat, and gave me Rs.100/-
and asked me to get idli. It would be around 7.00 A.M. I came to
Farmers' market. It took some time. By that time I got the change
for Rs.100/- and got the idli and came back to home. On the same
day, i.e. 21st at 6.00 A.M. my son Abdul Raheem had called my
daughter Mumtaz from abroad. The said information was given
to me by my daughter Mumtaz on the way to home after getting
the idli, as the house of my daughter Mumtaz is situated on the
way..... I bought the idli and went to my house. The tea which
was kept by me in a glass was there as it is. That tea was kept by
me for my grand daughter. It was there as it is. By that time the
accused Vahida was sitting near my grand daughter who was
lying there. I told the details given by Mumtaz to me and asked
her to wake up grand daughter and give her the tea. For that the
accused was sitting quiet. When I was telling the accused about
the admission of my granddaughter into school and she has to talk
to my son Abdul Raheem over phone, the accused asked me
where is the police station. I asked the accused, "What I am
telling you. What you are asking me." For that the margin accused
said that she had killed her daughter. I told her, "none of the mother
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who gave birth to a child will kill the child. You are telling lie". For
that the margin accused said that really she had killed her child.
When I was telling the accused that she is telling lie once again,
my daughter Mumtaz and my middle daughter-in-law Asha Begum
both of them came into my house. Again I told the accused "You
are telling lie." And asked her to wake up the child. But again the
accused said that she had killed the child, I shook the head of my
grand daughter. There was blood out of my grand daughter's nose.
My grand daughter Farhana was dead. When I saw that my grand
daughter was dead and came out shouting, as said by me earlier,
my daughter Mumtaz, my middle daughter-in-law Asha begum
came there. The people also gathered. I had giddiness. They took
me to the neighbouring house and made me to sit there. Anwar
Basha had made phone call. Police authorities came to our house.
They called me to the police station and asked me. I told them all
that had transpired. The police authorities recorded the same. I
had affixed my left thumb impression in the same. That was shown
to me. When the witness was shown the complaint dated 21.6.2007
and asked about the same, as the witness had accepted the same
the above said complaint had been marked as Ex.P1. ..... The
accused told me that she had put the saree outer end of a saree
(mundanai) around her neck and murdered her. When the police
authorities examined me I deposed what had happened.
Cross Examination: On the date of the death of my grand daughter,
at about 8.30 A.M. the police authorities came to our house. After
the police authorities came, seeing that the child was dead, the
police authorities brought me and the margin accused, my daughterin-law to the police station. I had deposed the same particulars
that I had deposed in the chief examination, in the police station
also. If anyone call loudly in front of my house, it would be heard
by the persons in the house of my daughter Mumtaz. My son
Shamsudeen and his wife Asha Begum both were staying in a
house in some other street. When I bought idli and came back,
Asha Begum and Shamsudeen were not available in the house of
my daughter Mumtaz....... If it is said that as we did not take any
steps to admit our grand daughter in the school, on 20th morning
the father of the accused had left our grand daughter Farhana in
our house and left for Kollakudi village, it is incorrect. When I
saw the child was dead and when I came out of the house and
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shouted at about 10 or 15 feet distance, Mumtaz and Asha Begum
were coming. The name of my house owner is Majid. I was
residing in a portion of the portico which was covered with asbestos
sheet. It has only one door. As the place wherein I resided is a
portico, there are no windows. When I got the idli and came back,
the door of the house was closed tight. I had knocked it strongly
and opened. .... It is incorrect to state that I had not deposed
during the police investigation that on the next day at 6.00 A.M. I
went to get the society milk and brought the milk. It is incorrect to
state that I had not deposed during the police investigation that
after making the tea and giving it to my daughter-in-law the margin
accused gave me Rs.100/- to get idli and that I went to the
farmer's market to get the idli and when I got the idli and was
coming back, through my daughter Mumtaz she said that Abdul
Raheem spoke to my daughter Mumtaz over phone. It is incorrect
to state that as deposed during my chief examination, I did not
mention in the complaint statement as well as during the police
investigation, that when I came back the tea which had been kept
for my grand daughter was as it is, and that when I asked the
accused, why she did not wake up granddaughter and give her
the tea, she was sitting quiet, and that when I asked again the
accused said that she had killed the child. ... My eldest son Jamal
Mohammed and my another son Shamsudeen, alone were sending
money to be from abroad. It is incorrect to state that as Abdul
Raheem did not take care of me, after his marriage, I am angry
with him. It is incorrect to state that in the event that my son
Abdul Raheem and the accused did not take care of me, they had
handed over my grand daughter Farhana to me. If it is said that
on account of this anger, I and my daughter Mumtaz colluded and
murdered my grand daughter, it is false. If it is said that Shamudeen
who came from abroad had given the money and by using his
influence, had used me and made a false case to be filed against
the accused, all of them are wrong. If it is said that after hearing
the news of the child's death, the accused who came to Perambalur
at 5.00 P.M. from Kollakudi Village, was taken by all of us and
handed over to the police, all are incorrect."
5.2. The testimony of PW-2 Mumtaz, daughter of PW-1, assumes
relevance in view of her close connectivity with the occurrence, as
asserted by PW-1. The relevant parts of her statement read as under: -
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".....The name of the daughter of the margin accused is Farhana.
The child died on the 21st day of June, 2007. Two days earlier, the
accused and her daughter stayed at Perambur as guests. My
mother is residing separately in a house which is away slightly
from my house. By that time, along with my mother, the margin
accused and her daughter were staying when they came to
Perambalur. The accused and her daughter were residing in my
mother's house separately. On the date of incident, between 7.30
to 8.00 A.M. my mother went to get idli. When my mother got idli
and went home, my mother shouted. People gathered there. We
went to that place. I saw that the accused's daughter was
dead.....When I asked margin accused, she said that she had
killed the child. (The witness once again said this). At about 7.00
A.M. on that day, my younger brother Abdul Raheem had called
me over phone and said that Vahida i.e. the margin accused should
not go anywhere and that the accused's daughter has to be admitted
in the school. My younger brother Abdul Raheem told me over
phone that I have to tell the accused to admit the school in
Perambalur and to stay along with my mother. When my mother
got idli and came back, I told the details as said by my younger
brother, Abdul Raheem over phone. My younger brother told me
over phone to bring the margin accused and keep her in my house
and before I could do the same, the incident had taken place.
When I saw, Farhana was dead with the blood coming out of the
nose and mouth. When the police authorities examined me, I
deposed the above details. That is all.
Cross Examination: After my mother got idli she shouted within 5
minutes. By that time 20 or 30 persons gathered there. Immediately,
between 9.30 and 9.45 A.M. the police authorities came there.
When I went and saw and asked the accused, the accused was
silent and this had been deposed by me in the chief examination
and the same had not been deposed during the investigation by
the police authorities. I did not depose during the investigation by
the police authorities about the phone call from Abdul Raheem at
7.00 A.M. on that day, and the details of conversation and also
about my informing the same to my mother, as I had deposed in
my chief examination.... After the marriage the accused and her
husband did not have smooth relationship with my mother. In these
circumstances, if it is said that the accused had left her daughter
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for educating her in my mother's house and on 20th she went to
Kolakkudi Village they are all false. The reason for the death of
the child who had been left as such is me and my mother, they are
all false."
5.3. PW-3 Asha Begum, the other daughter-in-law of PW-1, also
allegedly reached the scene of occurrence at the relevant point of time.
She allegedly asked the appellant as to why she killed the child but the
appellant did not answer. During her cross-examination, this witness
mentioned that she was not speaking to the appellant for four years prior
to the occurrence. The relevant parts of her statement read as under: -
"....The margin accused had a daughter by name Farhana. She
died on 21.6.2007. On the date of incident, the accused, her
daughter were staying in the house, wherein Basheera was staying,
along with P.W.1 Basheera. After my mother-in-law got the idli,
when she shouted, I and my sister-in-law Mumtaz went to the
house of my mother-in-law. My mother-in-law was residing in a
house 5 houses away from my house. When I went there and
saw, the child of the accused was instable. One nurse came and
saw the child and confirmed that the child was dead. My sisterin-law Mumtaz had said accused "Why did you do like this. If you
do not like the child, you would have left her with me" and she
was beating on her head. I also asked the accused "You are an
educated woman. Isn't it? Why did you kill the child" and shouted
at her. The accused did not speak anything. When the police
authorities examined me, I deposed the above said particulars. If
it is asked who is the cause for the death of Farhana, her mother
is the sole reason. That is all.
Cross-examination: I had deposed the facts which had been said
by me in the chief examination, during the police investigation
also. On the date of incident, my husband came from abroad for
his holidays. I and the margin accused are not speaking with each
other for the past four years. Two days before the death of Farhana,
the accused came with her child to our house. After she came,
she asked my husband that the husband of the margin accused
Abdul Raheem is not sending money to her and that he is also not
calling her over phone, and that she wanted to educate her child
Farhana. My husband asked the margin accused keeping silent
for all these years, now you have come here. Thereafter, the
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accused took the child and went to the house of my mother-inlaw. I did not say the details of my sister-in-law Mumtaz, asking
the accused after seeing the dead body of the child, during the
police investigation. It is incorrect to state that the accused is not
the cause for the death of Farhana and that as there is no contact
between me and the accused for the past four years, I am adducing
false evidence against the accused. As the accused did not come
to us, there is no contact between us."
5.4. PW-4 Sharfunisha, the landlord of PW-1, deposed that when
she came back to her house, she saw the child with the appellant. The
witness also claimed that she heard the appellant admit that she had
killed the child. The relevant parts of her statement could also be
reproduced as under: -
"... P.W.1 Basheera is residing in a portion of our house. At the
time of the incident, the margin accused came as a guest to
Basheera's house. Only then I came to know her. Before that, I
do not know the margin accused. The margin accused came with
her child to the house of Basheera and stayed there. On 21.6.2007,
the child of the accused was dead. I came to send my child to
school by bus went near to Perambalur Farmers market and came
back to my house, after sending my child. People were talking
there that the accused had killed her child. When I saw that child,
the margin accused was there. She said the crowd that she had
killed her child by straggling with her saree outer end of a saree
(mundanai) around her neck. I was there at that time. When the
police authorities examined me I deposed the above particulars.
Cross Examination: Basheera is residing in our house as a tenant
with the monthly rent of Rs.350/- for the past two years. It is
incorrect to state that I did not depose during the police investigation
that I went to send my child to school and after sending my child,
when I came back, I saw the crowd in my house.