VAHITHA v. STATE OF TAMIL NADU

942 SUPREME COURT REPORTS [2023] 3 S.C.R. 942 [2023] 3 S.C.R. A B C D E F G H 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 942 VAHITHA v.

STATE OF TAMIL NADU 943 – 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:

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-in- law’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]

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 A B C D E F G H 944 SUPREME COURT REPORTS [2023] 3 S.C.R. 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]

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]

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]

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, A B C D E F G H VAHITHA v. STATE OF TAMIL NADU 945 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]

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]

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 A B C D E F G H 946 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H 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]

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]

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; 984- A]

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, VAHITHA v. STATE OF TAMIL NADU 947 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]

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.