Holding

An extra‑judicial confession is a weak piece of evidence and, in the present case, was not proved satisfactorily, warranting the setting aside of the conviction.

Summary

Kavita was accused of throwing her two children into a well and then jumping in, after which she allegedly made an extra‑judicial confession to three villagers that she could no longer endure her husband's torture. The trial court and the Madras High Court convicted her of murder (Sec. 302 IPC) and attempted suicide (Sec. 309 IPC) based primarily on that confession and the testimony of the three witnesses. On appeal, the Supreme Court examined the reliability of the extra‑judicial confession, noting that such confessions are weak evidence and must be proved like any other fact, and found serious inconsistencies and credibility issues in the witnesses' statements, including the implausibility of the son’s body floating instantly as claimed. Medical jurisprudence was invoked to show that a drowned body typically sinks before floating after several hours, contradicting the prosecution’s version. Concluding that the prosecution had not discharged its burden of proof beyond reasonable doubt, the Court set aside the convictions and acquitted the appellant.

Issues considered

Whether an extra‑judicial confession can be relied upon as substantive evidence to sustain a conviction.
Whether the testimony of the three witnesses regarding the confession and the condition of the bodies is credible and reliable.
Whether the medical evidence on the behaviour of drowned bodies undermines the prosecution’s version of events.
Whether the prosecution proved the charge of murder and attempted suicide beyond reasonable doubt.

Legislation cited

Indian Evidence Act, 1872s. 24
Indian Penal Code, 1860s. 302, s. 306, s. 309

Subjects

extra‑judicial confessionwitness credibilityevidentiary valuemedical jurisprudencedrowningburden of proofacquittalIPC 302IPC 309

Judgment

A KAVITA
v.
STATE OF TAMIL NADU

JULY 23, 1998

B [M.M. PUNCHHI C.J.I. AND M. SRINIVASAN, J.)

Criminal Law :

Evidence Act, 1872 : Section 24.
c Extra-judicial confession-Value of-Held: Depends upon the Veracity
of the witness to whom it is made-Witness need not give actual words used
by the accused-In the circumstances ofthe case, discrepancies in the evidence
of the witnesses to whom the confessional statement was made renders the
extra-judicial confession not acceptable.
D
Penal Code, 1860 : Sections 302 and 309.

Appreciation of evidence-Accused jumped into well after throwing her
two children in it-Evidence of the doctor who performed the post-mortem
not clear as to how the body of the son instantly floated while that of the
E daughter folly sunk in the water-Held : In the circumstances of the case, it
is not possible to accept the evidence of the witness that he saw the body
of the son instantly floating when immediately after the incident he looked
into the well-Criminal Trial.

Medical Jurisprudence :
F
Drowning-Body usually sinks and starts floating only after some
hours.

The appellant-accused was convicted for offences under Sections 302
G and 309 of the Penal Code, 1860 and sentenced to undergo imprisonment
for life. The High Court, placing reliance on the extra-judicial confession
of the accused, confirmed the conviction and sentence. Hence this appeal.

According to the prosecution PW-I saw the accused jumping into a
well after throwing her two children in it. PW-I also saw the body of the son
H floating while that of the daughter fully sunk in the water. PWs I to 3 went
902
KA VITA v. STATE OF TAMIL NADU 903
~
.. down the well and brought out the accused. When questioned by them the
accused replied that she could not withstand the daily torture at the hands
A

of her husband and decided to bring an end to her life along with that of her
children. The accused was conscious when she was taken out of the well and
became unconscious immediately after making the statement of confession.

Allowing the appeal, this Court B
HELD : I.I Convictions can be based on extra-judicial confession but
;I
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 C
necessary that the witness must give the actual words used by the accused
but it is for the Court to decide on the acceptability of the evidence having
regard to the credibility of the witnesses. [904-H; 905-A[

1.2. In the instant case it is somewhat difficult to believe that the
appellant was conscious when she was taken out of the well and she became D
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. [906-D-E[

2. The evidence of the doctor who performed the post-mortem is not E
very clear as to how the body of the son could instantly float while the body
of the daughter was fully sunk i.n the water. After drowning a body usually
sinks and only after some hours it would start floating. Therefore, it is not
possible to accept the evidence of the witness that he saw the body of the son
floating when immediately he looked into the well. (908-G; 907-8)
11\
F
Taylor; "Principles and Practice of Medical Jurisprudence" 13th Edn.
p. 300 and Modi 's Textbook of Medical Jurisprudence and Toxicology, 21st
Edn. p. 226, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. G
695 of 1992.

From the Judgment and Order dated 27.2.92 of the Madras High Court
in Crl. A. No. 342 of 1986.

M.A. Chinnaswamy, M.A. Krishnamoorthy and J.B. Ravi for the Appellant. H
904 SUPREME COURT REPORTS [1998] 3 S.C.R.

A V.G. Pragasam for the Respondent.

The Judgment of the Court was delivered by

SRINIVASAN, J. The appellant was convicted by the Sessions Judge,
Tirunelveli for offences under Section 302 and Section 309 IPC and sentenced
B 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:
"
C On 13.1.85 at about 8.00 AM when PW I 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
D them she replied that she could not withstand the daily torture at the hands
of her husband and decided to bring an end to her life alongwith that of her
children. The fire service people came and took out the body of the male child
from the well. The appellant was taken to the hospital. PW! went to the police
station and gave a complaint referring to the confession made by the appellant.
E 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
F appellant. The evidence of PWs I 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
G 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 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
H thereof depends upon the veracity of the witness to whom it is made. It may
KA VITA v. STATE OF TAMIL NADU [SRINIVASAN, J.] 905

:..... not be necessary that the actual words used by the accused must be given A
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 I to 3 had no motive to speak falsehood and their version that the B
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 I to 3. The material discrepancies in their depositions
and the inherent improbabilities have been completely ignored.
c
6. PW! 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 D
of them before the occurrence. In the statement given by PW! 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 E
and he did not know as to how many children they had. PW3 stated that he
himself as well as PWs I & 2 were at the place of occurrence till the evening.
If that was so, PW! could not have given the statement of complaint at the
police station at about 9 AM. In the statement, Ex. P-1 the signature of PW!
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 F
signature of PWI had been taken on blank paper and it was filled up later.
PW-11 has admitted that normally the signature of the person who makes 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 G
that PWs I to 3 were there at the place of occurrence till the evening lead
to the inference that PW-I 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. H
906 SUPREME COURT REPORTS [1998) 3 S.C.R.

A 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 PW! 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
B 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 I 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.
c 8. According to PWs2 and 3, the appellant fainted immediately after
making a confession and she was taken to 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
D 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.
E
9. According to PW-2 the appellant pleaded with PWs I 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. PW! had not said
anything about this in his evidence or in his statement Ex. P- I . A perusal
F of the evidence of PW! 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.

I0. 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
G to by PW-I only and his versions are inconsistent. Thus there is nothing on
record which ~ill clinch that the appellant jumped into the well after throwing
her children therein.

11. The aforesaid circumstances are sufficient to shake the credibility
H of PWs I to 3 and the acceptability of their depositions. It follows that the
KAVITAv. STATE OF TAMIL NADU [SRINIVASAN, J.) 907
".., so called extra judicial confession is not proved satisfactorily. The courts A
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-I 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 B
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-
! looked into the well. It would have taken some hours before the body of C
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:
D
After drowning has occurred the body usually sinks and then
may re-appear after a variable period of time. The time interval depends
on:

I: the nature of the water -salt or fresh;
E
2. the specific gravity of the body:
1
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 F
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. Small
variations, therefore, have considerable effect on the buoyancy.

In a study in which the specific gravity and buoyancy were G
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. H
908 SUPREME COURT REPORTS [1998) 3 S.C.R.

A 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.
B
Clothing will tend 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
c 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.
D 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:

E Normally the human body is slightly heavier than fresh water and
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
F 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 are
some of the factors.

14. Though the body of the son of the appellant was sent to the
G 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.

H 15. In the facts and circumstances set out above, we are unable to
KA VITA v. STATE OF TAMIL NADU [SRINIVASAN, J.] 909
uphold the conviction and sentence awarded to the appellant. We are of the A
opinion that the prosecution has not prove its 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.

v.s.s. Appeal allowed. B

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