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PETITIONER: KAVITA

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       23/07/1998

BENCH: CJI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      The appellant  was convicted  by  the  Sessions  Judge, tirunelveli for  offences under  Section 30  and Section 309 IPC and  sentenced to  life imprisonment  for the former and one  year   rigorous  imprisonment   for  the   latter.  The conviction and sentence were confirmed on appeal by the High Court and  aggrieved thereby,  the appellant  has  preferred this appeal. 2.   The case of the prosecution is as follows:      On 13.1.85  at about  8.00 AM  when PW 1 went to answer call of  nature, he  saw the  appellant jumping  into a well situated nearby and when he ran to the well and looked down, he saw  that the appellant was struggling for her life and a male child’s  body was  floating. he  went  to  the  village nearby and  brought PW-2, PW-3 and one Meera to the place of occurrence. The three men went down the well and brought out the appellant. When questioned by the m she replied that she could not  withstand the  daily torture  at the hands of her husband and  decided bring an end to her life alongwith that of her  children. The  fire service people case and took out the body  of the male child from the well. The appellant was taken to  the hospital.  PW1 went  to the police station and gave a  complaint referring  to the  confession made  by the appellant. The  body of  the daughter  of the  appellant was removed from  the well  next day.  It was found that the two children died on account of asphyxia caused by drowning. The appellant and  her husband  were prosecuted.  The latter was charged with an offence under Section 306 IPC. 3.   The trial  court acquitted  the appellant’s husband and convicted the  appellant. The  evidence of  PWs 1  to 3  was relied on  as proving  the extra judicial confession alleged to have  been  made  by  the  appellant.  The  case  of  the appellant that  herself and  her son  slipped into  the well when they  were trying  to wash  their feet and her daughter got frightened  and fell  into the  well  was  rejected.  On appeal, the  High Court  has also  placed strong reliance on the alleged  extra judicial  confession of the appellant and confirmed the conviction and sentence. 4.   There is  no doubt  that convictions  can be  based  on

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extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be  proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may  not be  necessary that  the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. 5.   In the  present case the Courts below have proceeded on the footing that PWs 1 to 3 had no motive to speak falsehood and their  version that  the appellant  made a confession as soon as  she was taken out of the well should be accepted as gospel truth.  Unfortunately, both the courts have failed to take note  of various  circumstances which have a bearing on the acceptability  of the  evidence  of  PWs  1  to  3.  The material discepancies  in their depositions and the inherent improbabilities have been completely ignored. 6.   PW1 who  claims to  have witnessed  the jumping  of the appellant into  the well  did not  inform the  people in the village that he saw the act of jumping. He had only informed them that he saw the body of a woman inside the well. In the Chief-Examination he  deposed that he knew the appellant and her husband but in the cross-examination he admitted that he did not  know either  of them  before the occurrence. In the statement given by PW1 at the police station which is marked as Ex.  P-1 he  had stated that as soon as the appellant was taken out  of the well, he enquired from her as to where her daughter was.  It is  not known  how he  could have put that question to  her when  in the  cross-examination he admitted that he  did not  know the  appellant and her husband and he did not  know as  to how  many children they had. PW3 stated that he  himself as  well as  PWs 1 & 2 were at the place of occurrence till  the evening.  If that was so, PW1 could not have given  the statement of complaint at the police station at about 9 AM. In the statement, E. P-1 the signature of PW1 is on  the same  line as  the last  sentence therein. It was suggested to  PW-11, the additional Sub-Inspector of Police, who recorded  the statement,  that the  signature of PW1 had been taken  on blank paper and it was filled up later. PW-11 has admitted  that normally  the signature of the person who make s  the statement  will be  taken only  below the actual statement and  there was  no reason  why it was taken on the same line  as the  last sentence  in the  statement  in  the present  case.   This  circumstance   read  along  with  the deposition of PW3 that PWs 1 to 3 were there at the place of occurrence till  the evening lead to the inference that PW-1 did not  go to  the police Station at 9 AM as claimed by him and gave  the complaint.  At any  rate, the above facts give rise to  a serious  suspicion that  there is something other than what appears on the surface. 7.   PW-1 and PW-2 deposed that from the village, PW-2, PW-3 and a  woman by  name Meera were the only persons to come to the place of occurrence when PW1 informed the villagers that a woman’s  body was  found in the well. But PW-3 stated that several residents  of the  village  went  to  the  place  of occurrence along  with them.  In Ex. P-1 also it was averred that several  persons from  the village went to the place of occurrence. If  there were  number of  women at  that place, normally the  appellant would  have been  questioned by  the women intimately  and  not  by  PWs  1  to  3  only.  It  is significant that  no other  person from  the village or even Meera whose  presence was  admitted has  been examined  as a witness to prove the alleged extra judicial confession. 8.   According  to   PWs2  and   3,  the  appellant  fainted immediately after  making a  confession and she was taken to

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the hospital  by the Fire fighting Squad which came a little later. no witness is in a position to say as to who informed the Fire  Fighting Squad  about the  incident and  as to how they reached the place of occurrence within a short time. It is somewhat  difficult to  believe that  the  appellant  was conscious when  she was taken out of the well and she became unconscious  immediately   after  making   a  statement   of confession. On  the other hand, the version of the appellant is that  she was unconscious after she slipped into the well and she  regained consciousness  only in  the hospital. That appears to be more probable. 9.   According to PW-2 the appellant pleaded with PWs 1 to 3 with folded  hands not  to save  her or  take her out of the water. According  to PW-3  they told  her to come out of the water but  she refused  to do  so. PW1 had not said anything about this  in his evidence or in his statement Ex. P- 1 . A perusal of  the evidence  of PW1 along with the statement in Ex. P-1  will lead  to the  inference that the appellant was unconscious when she was drawn out of the water. 10.  There is no witness who had seen the appellant throwing her children  into the  well. The  jumping of  the appellant into the well is spoken to by PW-1 only and his versions are inconsistent. Thus  there is  nothing on  record which  will clinch  that  the  appellant  jumped  into  the  well  after throwing her children therein. 11.  The aforesaid circumstances are sufficient to shake the credibility of  PWs   1 to  3 and the acceptability of their depositions. It  follows that  the so  called extra judicial confession is  not proved  satisfactorily. The  courts below are in error in accepting the same. 12.  There is  yet another  relevant circumstance  which has been overlooked  by both  the Courts.  It is the evidence of PW-1 that  he saw  the body  of the appellant’s son floating when he  looked down  into the well after seeing her jumping into it. According to the evidence, the body of the daughter of the  appellant was  not  available  till  the  next  day. According to  the prosecution  the two  children were thrown into the  well and  immediately thereafter  the    appellant jumped therein to commit suicide. If that is so, the body of the boy  would also  have sunk  and it would not be floating when PW-1  looked into  the well.  it would  have taken some hours before  the body  of  the  boy  started  floating.  As regards the buoyancy of the human body, Taylor says thus, in his "Principles  and Practice of Medical Jurisprudence" 13th E. at page 300:      The recovery of an immersed body:      After  drowning  has  occurred  the      body usually sinks and then may re-      appear after  a variable  period of      time. The time interval depends on:      1: the nature of the water -salt or      fresh;      2.  the  specific  gravity  of  the      body:      3. the rate of putrefactive change.      It may  be recalled  that according      to the  principle of  Archimedes  a      body in  water  will  experience  a      buoyant force  equal to  the weight      of water  it  displaces.  Also  the      specific  gravity   of   the   body      relates the  weight and  volume  of      the body  to that of the water. The      specific gravity  of the human body      is very  close to  that  of  water.

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    Small variations,  therefore,  have      considerable    effect    on    the      buoyancy.      In a  study in  which the  specific      gravity    and     buoyancy    were      calculated  related   to   specific      volume of  air in the lungs of each      subject  Donoghue  and  Minnigerode      concluded that  all subjects  would      be capable  of floating  in  either      fresh water  or sea  water at total      lung   capacity.    At   functional      residual capacity  (the approximate      lung volume  of the dead body), 69%      of the  subjects would float in sea      water whereas  only 7%  would float      in fresh water.      In addition to the amount of air in      the lungs,  the specific gravity of      the human body varies with the size      and composition  of that  body. The      weight of  the skeleton  is balance      against the  amount of fat present.      Thus women  generally have  a lower      specific, gravity  than  men  while      infants and  young children  appear      to float more readily than adults.      Clothing will  tent to  support the      body   initially    with    natural      buoyancy and  later perhaps  assist      in sinking  because of  its weight.      The addition of weights to the body      will also assist the process.      Thus, as  a general  rule the  body      with water in the lungs and stomach      will sink.  It will  go down to the      bottom because hydrostatic pressure      which  increases  with  depth  will      compress but  gas  is  present  and      thus  increase   specific  gravity.      There it may remain until, if it is      free to  move the  formation of the      gases of putrefaction will decrease      the specific  gravity. It will then      rise to the surface and float. 13.  In  Modi’s  Text  book  of  Medical  Jurisprudence  and Toxicology, 21st E. at page 220 it is stated as follows:      Length of  time  the  body  was  in      water:      Normally the human body is slightly      heavier  then   fresh  water   rand      immediately  the   person   becomes      unconscious, sinks and goes down to      the bottom  unless  there  is  some      obstruction in  between or there is      a  strong  upward  current  in  the      water  Owing  to  putrefaction  and      formation  of   gases  all   bodies      sooner or  later again  come up  to      the surface,  it is much quicker in      warm water  than cold.  Usually the      sunk body  comes to  the surface  a      little distance  away from the site      of drowning,  however, the current,      its speed and the tide in sea water

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    are some of the factors. 14.  Though the body of the son of the appellant was sent to the hospital on 13.1.85, the post mortem was admittedly done only on  the next  day. The  reason for  the  delay  is  not available  on   record.  The  evidence  of  the  doctor  who performed the  post mortem  is not  very clear as to how the body of  the son could instantly float while the body of the daughter was fully sunk in the water. 15.  In the  facts and  circumstances set  out above, we are unable to  uphold the conviction and sentence awarded to the appellant. We  are of  the opinion  that the prosecution has not provelits case beyond reasonable doubt. The appellant is entitled to  the benefit  of doubt  and consequently  we set aside the  judgments of  both  the  Courts.  The  appeal  is allowed and the appellant is acquitted.