Ombantavida Beebi v. State of Kerala — 1957 DIGILAW 361 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. The appellant, Ombantavida Beebi has been convicted by the learned Sessions Judge of Tellicherry under S.302, I. P. C., for having committed the murder of her new born male child by asphyxiation on or about 5th February 1957 and has been sentenced to undergo simple Imprisonment for Life. 2. The appellant is a woman of about 25 years of age and according to the prosecution, her husband deserted her about 1 1/2 years prior to the occurrence; but she became pregnant and gave birth to a child on or about 5-2-1957. The further case of the prosecution is that to cover up her shame, the appellant killed the child by suffocating it immediately after delivery and deposited the dead body of the child near the water tank which is at a short distance from the place where the appellant was living. The learned Sessions Judge has accepted the case of the prosecution and found the appellant guilty of the offence with which she was charged and sentenced her to Simple Imprisonment for Life for the reasons stated by him in paragraph 13 of his judgment. 3. There are no eyewitnesses to the murder and the case against the appellant depends almost entirely on circumstantial evidence. The standard of proof required to convict a person on such circumstantial evidence, has been laid down by their Lordships of the Supreme Court in the decision reported in Hanumant v. State of Madhya Pradesh 1952 SCJ 509 at 513. Mr. Justice Mahajan (as he then was) in delivering the leading judgment in that case, observes at page 513 of the report as follows :- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that, within all human probability the act must have been done by the accused." 4. There Lordships of the Supreme Court have again reiterated the same principles in their recent decision in Bed Raj v. The State of Uttar Pradesh, 1956 SCJ 41. Mr. Justice Jagannadhadas, after referring to the decision of the Supreme Court mentioned earlier, observes at page 42 of the reports: "This standard requires that the circumstances relied upon must be fully established and that the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused." 5. Bearing in mind the principles laid down by their Lordships of the Supreme Court in the two decisions referred to above, we have to see whether the prosecution in this case has been able to establish the guilt of the accused beyond any reasonable doubt. 6. Mr. V. P. Gopalan Nambiar, learned counsel for the appellant, has very strenuously contended before us that the circumstances relied upon by the prosecution have not been fully established and that, in any event those circumstances are not enough to bring the offence home to the accused. 7. Therefore, we have to consider the various circumstances relied upon by the prosecution in this case. 8. The appellant is a resident of Kottakkuthaza Ward in the Municipal town of Cannanore. It is the evidence of PW 5 who belongs to Cannanore, that on 5-2-1957 he was going to Vattakandi house at about 4 P. M. He found a crowd of people near the water tank in the Kottakuthazha Ward. On going there he found a baby wrapped in cloths and the baby appeared to be dead. He informed the Sub Inspector in the Police Station, Cannanore and his First Information Report is marked as Ext. P4. Investigation was started by PW 8, the Sub Inspector of Cannanore. He speaks to the report, Ext. On going there he found a baby wrapped in cloths and the baby appeared to be dead. He informed the Sub Inspector in the Police Station, Cannanore and his First Information Report is marked as Ext. P4. Investigation was started by PW 8, the Sub Inspector of Cannanore. He speaks to the report, Ext. P4 given by PW 5 at about 7 P. M. on 5-2-1957. After registering a case, he went to the scene, which is on the west side of the water tank in the Ward, and found the dead body of a new born baby wrapped up in a cloth at the foot of a Kurukootty tree. He held the inquest and prepared a report, Ext. P8. The body of the child was sent to the Government Headquarters Hospital, Cannanore, for post mortem examination and he seized the articles M. Os. 1 and 2 which are a white Muslim Jacket (bloodstained) and bloodstained cloth piece respectively. 9. PW 9, the Circle Inspector of Police at Cannanore, who conducted further investigation, deposes that he examined PW 1 and certain other neighbours residing near the house of the accused and he also sent the accused herself for medical examination on 7-2-1957. The accused was arrested on 7-2-1957 late in the evening and the charge itself was laid on 21-2-1957. 10. As stated earlier, it was PW 5 who gave the First Information Report, Ext. P4 on the evening of 5-2-1957. His evidence is only to the effect that on his way to Vattakandi house on 5-2-1957 at about 4 P. M., he found a crowd of people near the water tank and he found there a dead body of a child wrapped up in cloths and that he informed the Sub Inspector of Police, Cannanore, and gave the statement, Ext. P4. There is no cross examination of this witness. 11. PW 1, who is a country midwife, states that she lives at Kottakuthazha Ward in Cannanore and that the accused was living in the same place about half-a-furlong from her house. The accused was married by a man of the Island about 7 years ago, and that the accused has a male child aged about 5 years. She speaks to a report circulating in that area that the accused become pregnant when she was not with her husband. The accused was married by a man of the Island about 7 years ago, and that the accused has a male child aged about 5 years. She speaks to a report circulating in that area that the accused become pregnant when she was not with her husband. On 5th Rajev she heard that a dead child was lying at the foot of a tree near the railway water tank and this was about 5 months prior to her giving evidence in the Sessions Court. She had a suspicion about the accused and so she went and saw her the same day. She found the belly of the accused empty, though she had seen the accused before in full pregnancy. The witness farther says that she used to meet the accused very often. The witness informed the accused that a dead child was lying near the water tank and she also asked accused why her belly had become shrunk. The accused did not give any answer but moved away from the witness. This conversation took place in the house of the accused. The witness inferred that the accused had a delivery. She further says that the husband of the accused came to the house of the accused about 3 1/2 months prior to the occurence and that the husband had left the place about a year prior to his last visit. 12. In cross examination, she has stated that in her evidence in the committal court she had stated that she never informed anybody about this before being questioned by the Police. She also says that it is not possible for her to say how many times the husband of the accused would have visited her after her marriage, nor could she say how long the husband of the accused stayed with her prior to this incident. She further states that she had noticed the belly of the accused in an enlarged condition for about 5 or 6 months before the date of the occurrence. From about the 6th month of pregnancy of the accused there was a talk in the locality that the accused had become pregnant, though her husband was not living with her. She further says that she is a country midwife. There was nobody else when the conversation took place between her and the accused on 5-2-1957. 13. From about the 6th month of pregnancy of the accused there was a talk in the locality that the accused had become pregnant, though her husband was not living with her. She further says that she is a country midwife. There was nobody else when the conversation took place between her and the accused on 5-2-1957. 13. PW 2 is also a resident of the Kattakuthazha Ward in Cannanore town. He deposes that his mother's elder sister died on 5-2-1957. On that night he heard that the dead body of a child was found south of his house at the foot of a Kurukootty tree. The witness says that at about 8 A. M. on 5-2-1957 he met the accused near the water tank and that his house is in the North side of the railway line. The accused was coming nearer the tank from the Southern side and she had a bundle wrapped up in cloth in her armpit about the size of a big unhusked cocoa-nut. She had also an umbrella in her hand. He also saw her going to the western side of the railway water tank. The tree mentioned by him is about 15 yards west of the tank. The witness further says that he knows the accused for about 7 years and he also knows that she was living about 2 furlongs South of his house. When he heard about the dead body of a child at the foot of the tree, he thought that the accused might have caused the death of the child and left it there. He also says he thought like that, because he had seen her going near the tree on that morning. He further says that the next, day he informed 5 of his coworkers about having seen the accused near about that place the previous morning. 14. In cross examination, this witness says that there are some houses and shops between his house and the house of the accused. There are three houses near the water tank itself and that Municipal employees corne in the morning and fill up the tank by pumping in water. There will be a man, Onakkan, a Municipal employee always by the side of the water tank. He saw the accused just opposite to him, as he was nearing the tank. There are three houses near the water tank itself and that Municipal employees corne in the morning and fill up the tank by pumping in water. There will be a man, Onakkan, a Municipal employee always by the side of the water tank. He saw the accused just opposite to him, as he was nearing the tank. He passed her and saw her proceeding towards the direction of the tree. No doubt, she had the veil on her head and it was flowing in the winds. There was nobody else at that place when he saw the accused. The accused was also having the umbrella open. The witness further says that the place is one of a regular pedestrain traffic and that it was the first day he saw the accused outside her house. The witness also says that he was employed about 3 or 4 years ago under the Karnavan of the accused as such, he is acquainted with her. He further says that he has seen the accused at the time of her marriage. He winds up by saying that he mentioned to his coworkers next morning about his seeing the accused and he told one Veeran, a beedi merchant in the night itself. His profession is carrying firewoods and other things in a trolly. He states that he did not mention to the people of the accused or her Karnavan about his having seen her with a bundle. In answer to a question as to whether the police arrested him for a tea-theft case, he replied that the police took him to the station for questioning and then released him. 15. PW 3 is the Woman Assistant Surgeon in the Government Head Quarters Hospital Cannanore who conducted the post mortem on the dead body of the child and issued the certificate, Ext. P1. She is also the Doctor who examined the accused herself on 7-2-1957 and gave the certificate, Ext. P2 dated 8-2-1957. 16. This witness speaks to conducting the post mortem on the dead body of a child sent to her by the police. The body was sent at about 9-30 P. M. on 5-2-1957 and she conducted the post mortem the next morning. The body was that of a well developed male child weighing about 6 Ibs., and the age of the child was about one day. The body was sent at about 9-30 P. M. on 5-2-1957 and she conducted the post mortem the next morning. The body was that of a well developed male child weighing about 6 Ibs., and the age of the child was about one day. The witness further says that it was a live birth, that is, death after birth. The chest was rounded and well formed and the level of the diaphram was at the 6th rib on either side. Lungs were found expanded and filling the thoracie cavity. 17. The witness further says that she conducted the hydrostatic test also. Both lungs with the trached and heart and Hymus floated in water. Each lung floated in water separately. Cut pieces of lung also floated in water. Even after squeezing the pieces floated in water. From all these circumstances the witness says she concluded that the child was alive when born and that the cause of death was asphyxia. She further says: "Without the action of some outside agency preventing the child from breathing asphyxia would not occur". Witness also deposes that she has noted all the symptoms truely and correctly in the post mortem certificate issued her namely, Ext. P1. 18. Regarding her observation of the accused on 7-2-1957 and issue of a certificate in respect of the accused, Ext. P2, the witness says that on 7-2-1957 when she examined the accused, she looked pale and anaemic. Her abdomen was distended. Uterus was felt 4" above the symphysis pubis. It was tender and flabby. Her labis was tender, vagina hot and patulous and gaping having lochis discharge, dark reddish in colour with few dark blood clots. Cornix was soft. External organs were patulous and admitted three fingers. Internal organs admitted one finger. Uterine cavity was irregular, hot and a few small blood clots were present. Uterus was large and bulky and tender on bimanual palpation. The size of the uterus was that of a large husked coconut. Breasts were firm, knotty and engorged and exuded plenty of milk From all the above features the witness says that she was of opinion that the accused has had a recent delivery about 3 to 4 days prior to her examination. All these facts have been mentioned correctly and truly in the certificate that she issued, Ext. P2 on examining the accused. She further says that it was a full term delivery. All these facts have been mentioned correctly and truly in the certificate that she issued, Ext. P2 on examining the accused. She further says that it was a full term delivery. 19. In cross examination, a suggestion appears to have been put on behalf of the accused that it would be a case of abortion. The witness has stated that in case of abortion on the 7th or 8th month, the uterus would not be so much exaggerated and milk also would not be found in such quantity. The labis would not be so tender and Vagina would not be so much gaping, if it was a case of abortion or premature delivery. The witness further states that the size of the uterus depends upon the size of the child. Unless there was a tremour or other pathological condition there would not be found any milk in virgins. Milk forms only after delivery. Before delivery there will be an exhudate called colluestrurn and that will be in very small quantity. In cases of premature delivery also milk will be formed after delivery. Sometimes in cases of complicated delivery death by asphyxia is possible. But the witness says in this case there was no foreign body or mucus plug in the trachea or air passage obstructing breathing. The witness is not able to say whether this was a case of difficult labour. 20. In re-examination PW 3 states that she did not observe any pathological condition in the accused. Witness further deposes that in this case the child has breathed and that takes place only after delivery. She winds up her evidence by saying that she did not observe any external injury on accused and that there was nothing to show that the accused had an instrumental delivery. She has also asserted that in this case the child has breathed and that takes place only after delivery. 21. The other witnesses are only formal witnesses. PW 4 speaks to his being present at the time of the inquest on 5-2-1957 and the recovery of the 2 cloths M. Os. 1 and 2 from the dead body of the child. This witness in cross examination has stated that usually, pumping of water into the tank is done in the morning and that till about 9 O'clock such pumping will usually take place. 22. 1 and 2 from the dead body of the child. This witness in cross examination has stated that usually, pumping of water into the tank is done in the morning and that till about 9 O'clock such pumping will usually take place. 22. PW 6 is a Police Constable who was present at the inquest held by the Sub Inspector and he also speaks to producing the dead body before the Doctor, PW 3 for post mortem examination. 23. PW 7 is a clerk in the Sub Magistrate's Court, Cannanore. He speaks to having sent M. Os. 1 and 2 to the Chemical Examiner and also to getting a report from the Chemical Examiner. This is the evidence adduced on behalf of the prosecution. 24. Ext. P1, the post mortem certificate given by PW 3 states that this child would appear to have died by asphyxia and also appears to have been born alive. The certificate also states that there are no external injuries on the body of the child. 25. The accused when examined under S.342 I. P. C. by the learned Sessions Judge admitted the statement, Ext. P9 given by her before the committal court. In answer to questions put by the learned Judge, she has stated that PW 1 did not at all come to her house on 5-2-1957 nor had any conversation with her as stated by the witness. She further stated that her husband was in her house 8 months before she was arrested in that case. She further stated that she did not go to the water tank as stated by PW 2, nor did she see him on that day. She also added that she does not step out of her house and she does not know the water tank. Regarding the evidence of PW 5, she stated that she did not throw the child, nor did she step out of her house. When the medical evidence about the condition of the accused, as spoken to by the Doctor and mentioned in Ext. P2 were put to her, the accused stated that she was carrying 7 months and when abortion took place, the police came and arrested her and that she did not deliver after completing 10 months and that she did not also throw away the child. 26. P2 were put to her, the accused stated that she was carrying 7 months and when abortion took place, the police came and arrested her and that she did not deliver after completing 10 months and that she did not also throw away the child. 26. Similarly, when the medical evidence regarding the post mortem of the child and the evidence of the Doctor, PW 3 was put to her, the accused stated that she does not know anything about that and she further added that when she has not taken it away, how can she know anything about that. Finally, she stated that her husband was with her 8 months prior to her arrest and that he is now in Bombay. After 8 months her husband went to Minicoy Islands taking her son and after one month he again came to her house at which time the police arrested her. She arid her husband went to the hospital and her husband went home taking her son and stayed there for three weeks. She also stated that she has no witnesses to be examined. 27. In appeal before us Mr. V. P. Gopalan Nambiar, learned counsel for the appellant, raised two main contentions namely, (1) that there is no conclusive proof that the child was born alive; and (2) that there is no similar conclusive evidence that the accused is responsible for the death of the child. The learned counsel contended that the evidence let in by the prosecution may, at the most, create a very strong suspicion against the accused but that will not warrant a conviction for murder by a court of law. The several circumstances relied upon by the prosecution will not necessarily lead to the only conclusion that it is the accused who is responsible for the death of the child. The learned counsel has also relied upon two decisions of the Madras High Court in In Re: Latchmakka AIR 1940 Madras 294 and Emperor v. Kuppammal AIR 1941 Mad. 1 . In Re: Latchmakka AIR 1940 Mad. 294 . Mr. Justice Burn and Mr. The learned counsel has also relied upon two decisions of the Madras High Court in In Re: Latchmakka AIR 1940 Madras 294 and Emperor v. Kuppammal AIR 1941 Mad. 1 . In Re: Latchmakka AIR 1940 Mad. 294 . Mr. Justice Burn and Mr. Justice Stodert held that the circumstances relied upon by the prosecution in the case before them may result in very strong suspicion against the accused there ; but will not certainly prove that the accused was responsible for the death of the child and the learned Judges held that the fact that the lungs on suction floated in water is not an infalliable test of live birth and a child may breath while its head is in the vagine, either during a presentation of the head or of the breach. In Emperor v. Kuppamaml AIR 1941 Madras 1. Mr. Justice Krishnaswami Ayyangar held that there was no sufficient evidence, in the case before the learned Judge, to go to the Jury and directed the Jury to return a verdict of 'not guilty'. In that case, there was evidence that the accused was in an advanced state of pregnancy. There was evidence that her appearance and the state of the room that she occupied on the date of the alleged offence indicated that she had been delivered of a child; but one material circumstance was wanting. That is, that there was no evidence to show that the accused was seen anywhere near a syphon where the dead body of the newly born infant was found. 28. The learned counsel also relied upon the passage in Modi's Medical Jurisprudence, eleventh edition, at page 346 to show that a child is sometimes strangled before birth by the knots or loops of the cord being lightened, or the cord being coiled round its neck during delivery and that a spasmodic contraction of the round the neck of the child may result in its death by suffocation. The learned counsel also very strongly relied upon the circumstance that in this case, the post mortem certificate, Ext. P1 itself shows there were no external injuries on the body of the child. 29. We have very carefully considered the several contentions of the learned counsel and also to the evidence on record. The Madras decisions relied on, will not help the learned counsel, nor the passage quoted from Modi's Medical Jurisprudence. 30. P1 itself shows there were no external injuries on the body of the child. 29. We have very carefully considered the several contentions of the learned counsel and also to the evidence on record. The Madras decisions relied on, will not help the learned counsel, nor the passage quoted from Modi's Medical Jurisprudence. 30. In view of the fact that in this case, only circumstantial evidence is available, we have considered the evidence adduced by the prosecution with very great care, in the light of the principles Said down in the two decisions of the Supreme Court referred to above, and we have come to the conclusion that the conviction and sentence passed on the appellant by the learned Sessions Judge is correct. 31. The evidence of PW 5 clearly proves the discovery of the body of the child near the water tank and his having made a report to the Police immediately thereafter. In fact, he has not at all been cross examined by the accused. 32. PW 1 is a country midwife and she knows the accused well. She has seen her in a state of pregnancy and when she heard about the discovery of a child's body, she went and questioned the accused as to why her belly has shrunk. The accused did not reply. Absolutely no suggestion has been put to this witness as to why her evidence cannot be accepted. She knows the pregnant state of the accused and in view of the talk in the village that the accused has conceived without her husband, she naturally connected the accused with the child which was found near the railway water tank. 33. Similarly PW 2 is also very well acquainted with the accused, lie having worked under the karnavan of the accused. Therefore, it is established that he knows the accused and can recognise her by sight. He definitely speaks to having seen the accused on the morning of 5-2-1957 at about 8 A. M. going in the direction of the water tank with a bundle wrapped in her armpit of the size of a big unhusked coconut. No suggestion has been made to this witness in cross examination as to why his evidence should not be accepted. No suggestion has been made to this witness in cross examination as to why his evidence should not be accepted. If the evidence of PW 1 and PW 2 are accepted, it will prove that the accused was in an advanced state of pregnancy at the material time, and that she was seen near about the place where the dead body of the child was subsequently found. 34. PW 3, the Doctor, has definitely given evidence to the effect that it was a live birth and that it was a case of death after birth and she is very definite that without the action of some outside agency preventing the child from breathing, asphyxia would not occur. In our opinion she has given very good and sound reasons which have been extracted above in coming to that conclusion. No suggestion has been made to this witness in cross examination that the reasons given by her are not either sound or open to doubt. Even in cross examination she had stated that though in cases of complicated delivery death by asphyxia is possible, in this case there was no foreign body or mucus-plug in the trachea or air passage obstructing breathing. The suggestion made here by the learned counsel that the asphyxiation may have been due to the umblical cord tying itself round the neck of the child and thus causing asphyxiation, has not been at all put to this witness. Her evidence makes it quite clear that the child was alive at the time of its birth and died only subsequently due to asphyxiation and this asphyxiation has been caused by outside agency. Therefore, it is quite clear on this evidence that the child did not die a natural death or did not die of asphyxiation during the actual delivery. 35. Regarding the condition of the accused herself, PW 1 has spoken to the fact that she has seen this accused full of pregnancy at or about that time and on 5-2-1957 when she saw the accused in her house, her belly had become shrunk. 36. The evidence of PW 3, the Doctor, again leaves no doubt that the accused must have delivered within 2 or 3 days prior to 7-2-1957. She has examined her on 7-2-1957 and given the certificate Ext. P2. 36. The evidence of PW 3, the Doctor, again leaves no doubt that the accused must have delivered within 2 or 3 days prior to 7-2-1957. She has examined her on 7-2-1957 and given the certificate Ext. P2. She has also given evidence to the effect that she found all conditions in the accused which will fit in only with a recent delivery and that a full-term delivery. The reasons given by her and the conditions noted on the accused and mentioned by the Doctor, have not been challenged at all in cross examination. A suggestion appears to have been made that it may be a case of abortion on the 7th or 8th month. The Doctor has negatived the suggestion and given her reasons for not accepting that suggestion in this case to that. She has again reiterated even in cross examination that there was nothing to indicate the accused may have had an instrumental delivery. She had further stated that in this case, the child has breathed and that took place only after delivery and she has also further stated that all the other indications found in the accused after examination, in her opinion go to show that the accused had an ordinary delivery just 2 or 3 days before she was examined. 37. The evidence of PW 1 shows that the accused was pregnant and full with a child. The evidence of the Doctor, PW 3 leaves no room for doubt that this accused had a full term delivery just 2 or 3 days prior to 7-2-1957. That certainly fits in with the case of the prosecution. No doubt, there are no eyewitnesses to the actual delivery itself nor to anybody having seen the child in a living condition. But the circumstantial evidence given by PW 1 and the Doctor, PW 3 clearly show that the accused was pregnant and had a full terra delivery. Even the case of the accused himself is not that she was never pregnant, but only that she was carrying 7 months and it was when abortion took place that police came and arrested her. She also says that she did not also deliver after completing 10 months. This statement of her is falsified by the evidence of the Doctor, PW 3 to the effect that it was a full-term delivery that the accused must have had. She also says that she did not also deliver after completing 10 months. This statement of her is falsified by the evidence of the Doctor, PW 3 to the effect that it was a full-term delivery that the accused must have had. That the accused was in a state of pregnancy is proved by the evidence of PW 1. That she must have had a full-term delivery one or two days before 7-2-1957 and the live birth of the child is also proved by the evidence of the Doctor PW 3. That she was seen on the morning of 5-2-1957 near the tank, where the body of the child was subsequently found, has also been satisfactorily established by the evidence of PW 2. He also has stated that when he saw her, the accused was having a bundle in her armpit of the size of an unhusked coconut. The chain of evidence leads us only to one conclusion and that is that the accused was pregnant, delivered a live child and put an end to the life of the child by asphyxiation and disposed of the body near the railway tank where it was subsequently found. 38. Though direct evidence regarding the actual asphyxiation caused to the child by the accused is not available in this case, we are nevertheless, satisfied that it is she who must have caused the death of the child. The motive, may be, because, as the evidence discloses, she has given birth to a child when she was not actually living with her husband. That must have certainly perturbed her mind and driven her to do this act. 39. In the end, we confirm the conviction of the accused under S.302 I. P. C., and also the sentence and dismiss this appeal. 40. We also feel that this is rather an unfortunate case and we endorse the recommendation of the learned Sessions Judge made to the Government in paragraph 14 of this judgment.