Holding

The appellate court affirmed the conviction, holding that the circumstantial evidence, corroborated by independent witnesses and the appellant's failure to explain the death, satisfied the requirements of Section 302 IPC.

Summary

The appellant Vahitha was convicted under Section 302 IPC for allegedly strangling her five‑year‑old daughter in the house of her mother‑in‑law. The prosecution relied on the testimony of the mother‑in‑law, two other family members, and two independent neighbours who saw the appellant near the child's body, as well as medical evidence of strangulation. The defence raised an alibi, claiming the appellant was with her father in a village and only returned after the child's death, supported by the father's testimony, which the trial court treated as hostile. The Supreme Court examined the credibility of the witnesses, held that minor inconsistencies in the mother‑in‑law's statements did not defeat her testimony, and that the independent witnesses corroborated the appellant's presence at the scene. It also noted the appellant's failure to explain the circumstances under Section 313 CrPC, invoking the burden of Section 106 Evidence Act against her. Consequently, the Court upheld the trial and high court findings and dismissed the appeal.

Issues considered

The prosecution must prove beyond reasonable doubt that the appellant was the person who strangled the child.
Whether the alibi pleaded by the appellant, supported by her father's testimony, is sufficient to create reasonable doubt.
Whether minor discrepancies in the testimony of a related witness (the mother‑in‑law) affect the reliability of the prosecution case.
Whether the appellant's failure to explain the circumstances under Section 313 CrPC triggers the burden of proof under Section 106 of the Evidence Act.
Whether the case falls under Section 302 IPC or can be reduced to culpable homicide not amounting to murder.

Legislation cited

Subjects

murderchild homicidealibicircumstantial evidenceSection 302 IPCSection 106 Evidence ActSection 313 CrPCwitness credibilitymotive

Judgment

942 [2023]
SUPREME COURT 3 S.C.R. 942
REPORTS [2023] 3 S.C.R.

A VAHITHA
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 762 of 2012)
B 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)
C
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
D 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
E
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
F 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
G
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
H 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 A
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
B
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 C
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- D
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 E
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 F
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 G
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
H
944 SUPREME COURT REPORTS [2023] 3 S.C.R.

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

found the child dead, with the appellant being with the child. As A
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
B
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 C
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
D
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 E
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, F
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] G

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
H
946 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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
C 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
D 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
E 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
F examination under Section 313 CrPC. [Para 19][983-G-H; 984-
A]
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
G 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
H 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 A
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 B
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 C
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] D
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 E
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 F
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. G
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 H
948 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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.
B 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
C [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
D [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
E
[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
F 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.
G
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
H the High Court of Judicature at Madras has dismissed the appeal against
VAHITHA v. STATE OF TAMIL NADU 949
[DINESH MAHESHWARI, J.]

the judgment of conviction and order of sentence dated 15.10.2009, as A
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, 1860 1 and awarding her the
punishment of imprisonment for life and fine of Rs. 2,000/- with default
stipulations.
B
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-year-
old 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 C
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 D
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 E
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 accused-
appellant and held proved that the victim child died of asphyxia because F
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. G

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. H
950 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B 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, mother-
C in-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
D 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
E 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
F 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
G 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
H The extractions in this judgment are from the translated copies placed on record.
VAHITHA v. STATE OF TAMIL NADU 951
[DINESH MAHESHWARI, J.]

is aged five years with the outer end of a saree (mundanai) portion A
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
B
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 C
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 D
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 E
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. F

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 G
Sharfunisha, landlord of PW-1; and PW-5 Thiru-Jothi, neighbour of PW-
1 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.
H
952 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Karthikeyan A. testified respectively to the post-mortem report and the
report with respect to the thyroid cartilage bone of the victim child. PW-
9 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
B
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
C 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
D 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.
E 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,
F 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
G 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: -

H
VAHITHA v. STATE OF TAMIL NADU 953
[DINESH MAHESHWARI, J.]

“……About 10 months ago, 18th day of 6th month, my daughter- A
in-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
B
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 C
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
D
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 E
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
F
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 G
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
H
954 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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
B
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
C 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
D
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
E 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 daughter-
F in-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,
G 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
H saw the child was dead and when I came out of the house and
VAHITHA v. STATE OF TAMIL NADU 955
[DINESH MAHESHWARI, J.]

shouted at about 10 or 15 feet distance, Mumtaz and Asha Begum A
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
B
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 C
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
D
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 E
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
F
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 G
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: - H
956 SUPREME COURT REPORTS [2023] 3 S.C.R.

A “…..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
B
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
C 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
D
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
E 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
F 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
G 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
H circumstances, if it is said that the accused had left her daughter
VAHITHA v. STATE OF TAMIL NADU 957
[DINESH MAHESHWARI, J.]

for educating her in my mother’s house and on 20th she went to A
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. B
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 C
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 D
saw, the child of the accused was instable. One nurse came and
saw the child and confirmed that the child was dead. My sister-
in-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 E
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.
F
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, G
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 H
958 SUPREME COURT REPORTS [2023] 3 S.C.R.

A accused took the child and went to the house of my mother-in-
law. 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
B
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
C 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
D 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
E 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.

F 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. I did not tell the
police authorities that the accused had said the crowd that she
G straggled the child with her saree outer end of a saree (mundanai).
It is incorrect to state that I do not know the accused and that I
had not seen the accused on the date of the death of her child. It
is incorrect to state that as Basheera is our tenant, I am adducing
false evidence.”
H
VAHITHA v. STATE OF TAMIL NADU 959
[DINESH MAHESHWARI, J.]

5.5. PW-5 Thiru-Jothi, neighbour of PW-1, testified to have seen A
the appellant for ten minutes, when the appellant was sitting near the
body of the deceased child. Her deposition could also be usefully
reproduced as under: -
“My name is Jothi. My father’s name is Veerasamy. I am residing
at Perambalur. Witness Basheera is residing in the house next to B
our house. About 4 or 5 months ago, one day on the date of death
of the child, I had seen the accused for 10 minutes. The margin
accused’s child had passed away on that day. Only on the date of
the death of the accused’s child, I had seen the margin accused
when she was sitting near the dead body of the child in the house
wherein witness Basheera was staying. By that time, it would be C
around 8 or 8.15 A.M. P.W.1 Basheera was crying and said the
mother who gave birth to the child itself had murdered the child. I
told her to go to the police station and not to do anything else. I
told this at the time of police investigation.
Cross-examination: It is incorrect to state that I had not deposed D
the details as mentioned in the chief examination, during the police
investigation. It is incorrect to state that I am adducing false
evidence.”
5.6. As noticed, the prosecution examined two medical officers
as regards post-mortem examination of the dead body of the victim child E
who testified to the injuries noticed on the dead body and as regards the
cause of death. PW-8 Dr. Saravanan testified that there was a wound
measuring 20 cm in length and 2 cm in breadth around the neck; and the
thyroid cartilage bone was fractured, which was consistent with
strangulation. He also opined that if outer end of a saree was twisted, F
put around the neck and strangled, there was a chance of such wound to
the child. During cross-examination, he deposed that the wound would
be more than 2 cm if a saree was tied around the neck. However, in re-
examination, he clarified that the wound could be less than 2 cm if the
saree was completely twisted in small measurement. PW-13 Dr.
Karthikeyan A. has been the doctor who gave the report in respect of G
the thyroid cartilage bone. As per his examination, the fracture of the
thyroid bone was ante-mortem and there was a chance that it was caused
due to strangling. However, during cross-examination, he stated that if
the neck is strangled using a saree, there is a less likelihood of marks.
The fact that the victim child died due to asphyxia because of strangulation H
960 SUPREME COURT REPORTS [2023] 3 S.C.R.

A is as such not a matter of dispute and hence, we need not elaborate on
these testimonies.
5.7. As regards the police personnel related with this matter, PW-
10Subbulakshmi, Sub-Inspector of Perambalur, recorded the statement
of PW-1 and scribed the FIR. She deposed that at around 9:00 am, PW-
B 1 came to the police station to file a complaint. During cross-examination,
she clarified that PW-1 had not deposed in her original complaint that
she had come out of her house and shouted after realising that the child
was dead and had not brought the appellant to the police station
immediately after the occurrence. She also denied the suggestions in the
cross-examination that she visited the place of occurrence at 8:00 a.m.
C and brought the witnesses as also the appellant with her to the police
station. The relevant extracts from the testimony of PW-10 are as under:-
“…On 21.6.2007 at 9:00 A.M. when I was on duty, Basheera,
wife of Mohammed Kasim, aged 65 years, residing at No. 230/
48D, Cross Street, Renga Nagar, Perambalur, came to the station
D and had deposed the complaint and I recorded the same in writing.
After deposing the complaint, I had read out the statement to
Basheera. As she said that it was as deposed by her, and as she
said that she did not know to sign, I had obtained her left thumb
impression in the complaint…
E Cross Examination:…In the complaint that had been deposed to
me it had not been indicated that after the incident was over, the
margin accused was brought by the complainant Basheera to the
Perambalur Police Station. When Basheera deposed, Anwar
Basha was with her.… The witness Basheera did not depose in
F the complaint that after seeing that the child was dead, Basheera
came out of the house, and shouted and thereafter the witnesses
Mumtaz and Asha Begum came there. Basheera did not depose
in the complaint that she went to get the society milk at 6:00 A.M.
She did not depose in the complaint that when she bought the milk
and came on the way she met her daughter Mumtaz at her house
G and talked to her. The witness Basheera did not depose in the
complaint that after coming to house, the accused had given
Rupees one hundred for getting idli and that she had taken the
same and went to the farmer’s market to get idli. The witness
Basheera did not depose in the complaint that after she came to
H the house, the house door was locked and she had knocked the
VAHITHA v. STATE OF TAMIL NADU 961
[DINESH MAHESHWARI, J.]

door and opened the same. If it is said that after coming to know A
of the incident, I went to the place of incident at 8.00 A.M. itself
and I had brought the witnesses, Basheera, Mumtaz and Asha
Begum to the police station, they are all incorrect. If it is said that
at that time, I had taken the margin accused along with the above
said witnesses, it is also incorrect…”
B
5.8. PW-12 Thiru G. Ayyanar was the first IO in the case. He
stated to have received the FIR at 10:15 a.m. on 21.06.2007 and
commenced the investigation. For the purpose, he went to the place of
incident and examined a few witnesses; prepared the mahazar; and seized
the articles like mat and pillow. He also stated to have arrested the
appellant at Perambalur New Bus Stand and having recorded her C
confessional statement in the presence of witnesses. He further stated
to have seized the saree said to have been used in the offence. The
relevant parts of his testimony read as under:
“…On the same day at about 17.00 hours, I had arrested the
accused Vahida in the Perambalur New Bus Stand. I had D
examined the margin accused and recorded her confession
statement before the witnesses Devaraj and Parameswaran. The
margin accused said in her confession statement that she had
killed the child by strangling her neck with the saree which she
was wearing. The admitted portion of the confession statement E
had already been marked as Ex. P9. As per the confession
statement, the saree which she was wearing was seized by me
with the assistance of the lady police under the mahazar. The
mahazar for the same was the one shown to me. That had already
been marked as Ex. P8. The saree which was seized by me is the
one shown to me. That had already been marked as M.O.3. …. F

Cross-Examination: In Ex.P8 Mahazar, it had been indicated that
through the Sub-Inspector, Subbulakshmi the accused was given
the alternate saree. The accused who was arrested at 5.00 P.M.
on that day, was kept by me till 6.45 P.M. in the Perambalur New
Bus Stand only. In the last portion of the confession statement, it G
had not been mentioned that the sub-inspector Subbulakshmi was
sent to get the alternate saree. It had been indicated that the lady
police had been sent and the alternate saree was brought… The
evening newspapers which are published in Perambalur would
come at 5.00 P.M. If it is said that in the Maalai Malar newspaper H
962 SUPREME COURT REPORTS [2023] 3 S.C.R.

A dated 21.6.2007, which had been circulated at 5.00 P.M. on that
day, it was indicated that the accused of this case had been
arrested, I do not know of the same. I did not give such a news. If
it is said that in the same newspaper, the news stating that the
police authorities are conducting the investigation to witness
Basheera, I do not know of the same. The witnesses Basheera
B
and Mumtaz had deposed that after the incident was over, the
margin accused ran from the house. If it is said that in the circulation
of Dinakaran and Dinamalar newspapers, it had been indicated
that after the incident was concluded, the mother of the child was
lying down near the child, I do not know of the same. It is incorrect
C to state that after the death of the child the margin accused had
ran away from the house and that we had published the news
falsely stating that the margin accused was lying near the deceased
child. It is incorrect to state that the witnesses Basheera, Mumtaz
and Ashabegum had deposed during my investigation that they
had seen that the child was dead. It is incorrect to state that on
D
20.6.2007 itself, the margin accused had left her female child to
the witness Basheera, and she went to Kolakkudi Village on the
same day. It is incorrect to state that on 21.6.07, the accused who
was in Kolakkudi village had the information that her child was
dead and that she came to Perambalur by bus and when she got
E down, I had arrested her….”
5.9. PW-14 D. Sivasubramanian had been the other police officer
who carried out the later part of investigation, recorded the statements
of other witnesses and then filed the charge-sheet. For the present
purpose, we need not elaborate on the testimony of this witness or the
F other witnesses who had been a part of the investigation including the
photographer and the attesting witnesses.
5.10. However, the testimony of PW-6 Jamal Mohammed, father
of the appellant, assumes relevance in the present case, particularly when
he did not support the prosecution version and deposed in support of the
G plea of alibi as taken by the appellant by asserting that he had left the
child with PW-1 on 20.06.2007; had taken the appellant with her to
Kolakkudi village, and the next day, he came to Perambalur with the
appellant after getting information about demise of the child, when the
appellant was arrested at the bus stand. This witness was treated as a
hostile witness and permission was granted to the prosecution to cross-
H
VAHITHA v. STATE OF TAMIL NADU 963
[DINESH MAHESHWARI, J.]

examine him. He was, of course, not cross-examined by the defence. A
The relevant parts of the statement of this witness could be usefully
reproduced as under: -
“….On 16.6.2007, I had called Shamsudeen who came from
foreign country over phone. He asked me to come on Monday.
On 18 th I took my daughter, the margin accused and my B
granddaughter Farhana and went to the house of Shamsudeen. I
talked to Shamsudeen that if leave the child in Perambalur for
education and if she is in their protection, Abdul Raheem would
be sending the money. Shamsudeen asked me to tell this to his
mother. I went there and told that. She asked me to tell the same
to her daughter Mumtaz. In this manner, I was telling for 3 days. C
They did not respond properly. When I started to go to the village,
my son-in-law’s mother asked me to leave her grand daughter
Farhana alone and take my daughter along with me. On 20th
Wednesday at 6.00 P.M. I took my daughter alone and went to
Kolakkudi Village. The next day morning we got the information D
over phone that the child Farhana was dead. We came to
Perambalur. They had arrested my daughter. My son-in-law Abdul
Raheem is not sending the sufficient money. In these
circumstances, this witness had been treated as hostile witness
by the prosecution and sought permission for the cross examination.
The permission was granted for cross examination. E

Cross-examination on the side of the prosecution: As Abdul
Raheem did not send the money properly and manage the family,
we dropped his child in Perambalur. No one said us to go to
Perambalur. We ourselves went to the eldest son of the family
Shamsudeen. As no one had responded at Perambalur we did not F
take steps to take the child again to Kolakkudi. As she i.e. my
son-in-law’s mother asked to leave the child and go, we had left
the child and went from there. I was working in foreign country
earlier. At present I am running the poultry shops business. If it is
said that I had deposed during police investigation, that my daughter G
margin accused used to tell me that she is going to mother-in-
law’s house and hospital, and was going in a wrong way, it is not
correct. The police authorities did not examine me. If it is said
that the margin accused was not staying in my house properly
and that the conduct of the accused is not good and that if the
H
964 SUPREME COURT REPORTS [2023] 3 S.C.R.

A same is revealed out it will spoil the prestige of my family, and
hence I did not reveal it, they are all incorrect. If it is said that
during the police investigation, I had deposed that my son-in-law
who came to know all these details, had called over phone and
told me to drop the margin accused and his child in the house of
witness Basheera, they are all incorrect. It is incorrect to state
B
that during the police investigation I had deposed that thereafter I
had taken the margin accused and her child and dropped them in
the house of witness Basheera. If it is said that during the police
investigation, I had deposed that when I dropped them and started
to leave Permabalur, the accused told me that she could not stay
C in Perambalur and that she will be coming soon to me and that I
had advised her to do as said by the accused’s husband and I left
from there, they are all incorrect. If it is said that, during the police
investigation I had deposed that on the next day, I came to know
over phone that my daughter, the margin accused had killed my
grand daughter Farhana and that thereafter I came to Perambalur
D
and saw my granddaughter who was dead and that the accused
had ran away, they are all incorrect. If it is said that, during the
police investigation I had deposed that as the accused could not
act as per whims and fancies at Perambalur, the accused had
killed her child, it is incorrect. It is incorrect to state that as the
E accused is my daughter, I am adducing false evidence.”
5.11. In her examination under Section 313 of the Code of Criminal
Procedure, 19735, the appellant denied all the allegations made against
her as false.
6. With the aforesaid status of record, the Trial Court heard the
F parties and proceeded to decide the matter by way of its judgment and
order dated 15.10.2009.
6.1. The Trial Court held that although PW-1 to PW-3 were related
witnesses but, PW-4 and PW-5 were independent witnesses who had
seen the child and the accused-appellant together; and there was no
G necessity for them to depose against the appellant. The Trial Court also
held that the testimony of PW-1 could not be discarded merely because
of minor contradictions, given that she might not have been able to
remember certain details on account of her age and other factors. The
5
‘CrPC’ for short.
H
VAHITHA v. STATE OF TAMIL NADU 965
[DINESH MAHESHWARI, J.]

Trial Court also referred to the statement of PW-6, the hostile witness, A
who admitted the fact that the appellant was arrested at the bus stand;
and held that the appellant had not fulfilled the burden of proving alibi,
since there were two independent witnesses who saw her at the scene
of occurrence. Further, the Trial Court held that the oral testimony was
consistent with the cause of death determined by the medical findings.
B
6.2. After finding that the appellant was the last person to be seen
with the victim child, as established by the testimony of PW-1 to PW-5,
the Trial Court highlighted the importance of cogent evidence establishing
the chain of circumstances; and held that the prosecution had discharged
its burden of proving beyond reasonable doubt that the appellant had
committed the offence of murder of the victim child. The Trial Court C
summed up its conclusion as follows: -
“38. In the case before us also, the accused who had been leading
an independent luxurious life with the money more than sufficient,
not willing to live with P.W.1 for the sake of the education of her
child, and without considering that the child was born to her with D
an intention to cause death to the child, and also knowing full well
that the act being committed by her would cause death to the
child on 21.6.2007 at 8.00 A.M. in the house of P.W.1, when
P.W.1 was not available at house, she had twisted outer end of
her saree and strangled around the neck of her daughter 6 years E
old Farhana, who was sleeping and the thyroid cartilage bone
was fractured and thus caused the death. In order to prove the
charge, the prosecution had placed the oral evidences and
documentary evidences in a cogent manner like a chain.”
6.3. Accordingly, the Trial Court held that the appellant was guilty F
of the offence under Section 302 IPC and awarded the sentence as
noticed hereinbefore.
7. The appellant challenged the decision of the Trial Court before
the Madras High Court in Criminal Appeal No. 1 of 2010, which was
dismissed by the impugned judgment and order dated 09.03.2010. G
7.1. While accepting the submissions that there had been certain
inconsistencies in the statements made by PW-1, the High Court held
that the only point for consideration was as to whether the child was left
in the custody of the appellant at the time of occurrence; and after detailed
examination of the evidence on record, affirmed the findings of the Trial
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966 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Court that the appellant was the last person seen with the deceased
child. Hence, the High Court observed that the onus was on the appellant
to explain as to how the death was caused. Addressing the plea of alibi,
the High Court also held that such a plea was not tenable because PW-
4 and PW-5 were independent witnesses, both of whom testified that
the appellant was available at the place of occurrence on 21.06.2007;
B
that she was arrested on the very same day she was seen with the
deceased child; and that she was the only person available with the child
at the time of occurrence. The High Court, inter alia, observed and
held as under: -
“13. Now learned counsel brought to the notice of this Court that
C according to P.W.1, when she was returning from the house, she
found that the accused was strangulating the child, which was not
available in 161 statement. It is true, when she gave Ex.P1 report,
she has stated that she actually found the accused/appellant
strangulating the child, which was not available in 161 statement.
D Even then, the only point that arises for consideration at this juncture
is that when the child was left in the custody of the mother/
appellant by P.W.1 at the time of occurrence, when P.W.1 came
back, she found only the dead body of the child. At the time of
occurrence, the appellant alone was available along with the child.
Hence, it is for the accused to explain as to how the death was
E occurred. In the instant case, the prosecution proved that the child
died of asphyxia due to strangulation. If to be so, it is for the
mother/appellant to explain as to how the death was caused.”
“14. The defence plea putforth before the Trial Court and equally
here also is that the accused was absent during the relevant time
F and she left the place leaving the child along with P.W.1. The
Court is unable to agree with the same for more reasons than
one. It is a false plea. Firstly, P.Ws.4 and 5 are independent
witnesses, who are neighbors. According to P.Ws.4 and 5, the
accused was very much available at the place of occurrence,
G which took place on 21st June, 2007 morning. Secondly, according
to the police, she was arrested on the very day and she was
produced before the Court. When the occurrence had taken place
at 8 a.m., the case came to be registered at 9 a.m. and the First
Information Report reached the Court on the same day. Thirdly,
the accused was the only person available with her child at the
H
VAHITHA v. STATE OF TAMIL NADU 967
[DINESH MAHESHWARI, J.]

place and time of occurrence and it is for the accused to explain A
as to how the occurrence had taken place. But, she did not explain.
Under such circumstances, it is quite clear that the prosecution
has proved its case that except the accused, no one could have
committed the murder of the child.”
7.2. In view of the above and taking all the factors into B
consideration, the High Court upheld the judgment of the Trial Court and
dismissed the appeal.
8. Assailing the judgment and order aforesaid, learned counsel for
the appellant has put forward a variety of submissions, particularly
assailing the findings in question with reference to several discrepancies C
appearing in the prosecution case; the factum of strained relations
between the husband of the appellant and PW-1 to PW-3 for which,
they might be interested in deposing against the appellant; the plea of
alibi of the appellant, particularly with reference to the testimony of PW-
6 Jamal Mohammed; and no likelihood of motive for the appellant to kill
her own child. D

8.1. Learned counsel has made elaborate reference to the contents
of the complaint and several contradictions appearing in the version
occurring in the complaint from that occurring in the statement of PW-1
Basheera, particularly when in the complaint she alleged to have left her
house for buying idli without taking money but, in the deposition, she has E
stated that the appellant gave her Rs. 100 and asked her to get idli; when
in the complaint, PW-1 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. Various other contradictions as to what
PW-1 saw and did after reaching back the house have also been referred F
to.
8.2. Learned counsel has also referred to the omission in the
statements of witnesses that the appellant twisted her saree and
strangulated the child by pressing the same around the neck and has
submitted that their versions do not correlate with the post-mortem G
examination.
8.3. Learned counsel has submitted that there was no conclusive
proof as regards the theory of arrest of the appellant at the bus stand
and has relied upon the testimony of PW-6 Jamal Mohammed that the
appellant was arrested at the bus stand only when she came back to
H
968 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Perambalur with him after receiving information about the demise of the
child. Further, with respect to the statement of PW-6, learned counsel
has argued that plea of alibi taken by the appellant is clearly established
on record and looking to the background facts, particularly the strained
relations of the appellant with her mother-in-law and other relatives of
her husband, the plea of alibi and assertion of PW-6 that he and the
B
appellant left the child in the company of PW-1 and her relatives cannot
be ignored.
8.4. Learned counsel has also argued that the motive as suggested
by the prosecution that the appellant wanted to live lavishly and for that
purpose killed the child remains baseless as the appellant was living
C alone in her matrimonial house immediately after the marriage where
her husband used to stay during his short visits to India. In this regard,
the learned counsel has also submitted that husband of the appellant
was never examined by the prosecution as regards her conduct and
hence, there is no basis to allege motive. It has also been submitted that
D in view of the admitted fact that there were strained relations between
husband of the appellant and PW-1, possibility of the appellant being
falsely implicated so that PW-1 could derive monetary benefit from her
son, husband of the appellant, cannot be ruled out.
8.5. Learned counsel has argued in the alternative that the case
E does not fall under Section 302 IPC, particularly in view of the fact that
admittedly there had been strained relations between the parties and
even as per the version of PW-1, on the morning of the date of incident
itself, she and the appellant had entered into a quarrel as the appellant
wanted to go to the place of her father, Kolakkudi. In the given
circumstances, according to the learned counsel, even if the accusations
F against the appellant are taken into consideration, it could not be a case
beyond culpable homicide not amounting to murder.
8.6. Learned counsel has relied upon various decisions of this
Court including that in the case of Shyamal Ghosh v. State of West
Bengal: (2012) 7 SCC 646 as regards the witness discrepancies;
G Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC
116 as regards circumstantial evidence and the factors when accused
would be entitled to benefit of doubt as also with regard to the testimony
of interested/related witnesses; and Ramnaresh v. State of
Chhattisgarh: (2012) 4 SCC 257 as regards entitlement of the accused
H to maintain silence in examination under Section 313 CrPC; and obligation
VAHITHA v. STATE OF TAMIL NADU 969
[DINESH MAHESHWARI, J.]

on the part of the Trial Court to put the material evidence to the accused A
to extend an opportunity of explanation.
9. Per contra, learned counsel for the respondent-State has
submitted that the prosecution has discharged its burden of proving beyond
reasonable doubt that the appellant committed the offence punishable
under Section 302 IPC. B
9.1. Learned counsel has argued that minor discrepancies in the
statements of witnesses have no effect on the prosecution case, and
that presence of the appellant alone with the child has been corroborated
by the testimony of independent witnesses. In this regard, reliance has
been placed on various decisions including those in Bharwada C
Bhoginbhai Hirjibhai v. State of Gujarat : (1983) 3 SCC 217; Krishna
Mochi v. State of Bihar : (2002) 6 SCC 81 and Leela Ram v. State of
Haryana:(1999) 9 SCC 525 to submit that minor contradictions are
normal and are bound to appear in the statements of witnesses.
9.2. It has further been submitted by the learned counsel that the D
appellant was the last person to be seen with the child before she died;
therefore, she had special knowledge about the death of the child and
was required to provide an explanation in terms of Section 106 of the
Evidence Act, 18726 about the circumstances under which the death
took place. In this regard, learned counsel for the respondent-State has
relied upon various decisions including those in Satpal v. State of E
Haryana : (2018) 6 SCC 610; and State of Rajasthan v. Kashi
Ram:(2006) 12 SCC 254 to submit that if the accused does not offer
an explanation under Section 106 and there is corroborative evidence
establishing a chain of circumstances leading to the conclusion of guilt,
the accused could be convicted on that basis. F
9.3. It has also been submitted that the testimonies of PW-1 to
PW-5 clearly establish the fact that the appellant was present at the
place of occurrence and hence, her alibi has not been proved. The appellant
was required to furnish some explanation under Section 313 CrPC but
she did not do so, leaving no room for doubt that she was responsible for G
the death of the child.
9.4. Coming to the question of reasonable doubt, learned counsel
has contended that this benefit cannot be stretched and the prosecution
6
‘Evidence Act’ for short.
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970 SUPREME COURT REPORTS [2023] 3 S.C.R.

A cannot prove its case without there being an iota of doubt. To substantiate
this argument, the learned counsel has relied upon several decisions
including those in State of Haryana v. Bhagirath : (1999) 5 SCC 96;
Gangadhar Behera v. State of Orissa: (2002) 8 SCC 381 and Krishna
Mochi (supra) wherein it was held that it is impossible to prove all the
elements in a criminal trial with scientific precision and that reasonable
B
doubt must not be a ‘trivial’ or ‘merely possible’ doubt.
9.5. The learned counsel for the respondent-State has also
countered the argument that PW-1 to PW-3 were biased witnesses by
submitting that in the instant case, there was no reason to falsely implicate
the appellant or protect the real culprit. In this regard, reliance has been
C placed on Gangabhavani v. Rayapati Venkat Reddy:(2013) 15 SCC
298 and State of Rajasthan v. Kalki : (1981) 2 SCC 752 to submit
that a witness can only be called “interested” when they derive some
benefit out of the litigation. Natural witnesses are not interested witnesses,
and if a related witness was present at the scene of occurrence, his
D deposition cannot be discarded.
9.6. It has also been submitted on behalf of the respondent-State
that last seen theory would not apply to PW-1 as she was never found
present alone with the deceased child. It has further been contended
that PW-1 would not have benefitted in any way from the death of the
E child.
9.7. Thus, learned counsel for the respondent-State would submit
that when duly established chain of circumstances leads to no other
plausible hypothesis than the guilt of the appellant, no case for interference
in the concurrent findings of the Trial Court and the High Court is made
F out.
10. We have given anxious consideration to the rival submissions
and have examined the record with reference to the law applicable.
11. As noticed, the Trial Court and the High Court have concurrently
recorded the findings in this case that the prosecution has been able to
G successfully establish the chain of circumstances leading to the only
conclusion that the appellant is guilty of the offence of murder of her
daughter. The concurrent findings leading to the appellant’s conviction
have been challenged in this appeal as if inviting re-appreciation of entire
evidence. Though the parameters of examining the matters in an appeal
by special leave under Article 136 of the Constitution of India have been
H
VAHITHA v. STATE OF TAMIL NADU 971
[DINESH MAHESHWARI, J.]

laid down by this Court in several decisions but, having regard to the A
submissions made in this case, we may usefully reiterate the observations
in the case of Pappu v. The State of Uttar Pradesh: (2022) 10 SCC
321 wherein, after referring to Articles 134 and 136 of the Constitution
of India and Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 as also with a detailed reference to the
B
relevant decisions, this Court has summed up the subtle distinction in the
scope of a regular appeal and an appeal by special leave as follows: -
“71.…. In such an appeal by special leave, where the trial court
and the High Court have concurrently returned the findings of
fact after appreciation of evidence, each and every finding of
fact cannot be contested nor such an appeal could be dealt with C
as if another forum for reappreciation of evidence. Of course, if
the assessment by the trial court and the High Court could be said
to be vitiated by any error of law or procedure or misreading of
evidence or in disregard to the norms of judicial process leading
to serious prejudice or injustice, this Court may, and in appropriate D
cases would, interfere in order to prevent grave or serious
miscarriage of justice but, such a course is adopted only in rare
and exceptional cases of manifest illegality. Tersely put, it is not a
matter of regular appeal. This Court would not interfere with the
concurrent findings of fact based on pure appreciation of evidence
nor it is the scope of these appeals that this Court would enter into E
reappreciation of evidence so as to take a view different than that
taken by the trial court and approved by the High Court.”
11.1. This proposition has been recapitulated in the case of
Mekala Sivaiah v. State of Andhra Pradesh:(2022) 8 SCC 253,in
the following words: - F

“15. It is well settled by judicial pronouncement that Article 136 is
worded in wide terms and powers conferred under the said Article
are not hedged by any technical hurdles. This overriding and
exceptional power is, however, to be exercised sparingly and only
in furtherance of cause of justice. Thus, when the judgment under G
appeal has resulted in grave miscarriage of justice by some
misapprehension or misreading of evidence or by ignoring material
evidence then this Court is not only empowered but is well expected
to interfere to promote the cause of justice.
H
972 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 16. It is not the practice of this Court to re-appreciate the evidence
for the purpose of examining whether the finding of fact
concurrently arrived at by the trial court and the High Court are
correct or not. It is only in rare and exceptional cases where
there is some manifest illegality or grave and serious miscarriage
of justice on account of misreading or ignoring material evidence,
B
that this Court would interfere with such finding of fact.”
12. Learned counsel for the appellant has endeavoured to argue
that there are several shortcomings and lacunae in the prosecution case,
particularly in view of several inconsistencies and contradictions in the
versions of the witnesses; and that the relied upon factors are not providing
C such links in the circumstances which may lead to the finding on the guilt
of the appellant. While dealing with such submissions, we may usefully
take note of the basic principles applicable to this case, as noticeable
from the relevant cited decisions.
12.1. The principles explained and enunciated in the case of
D Sharad Birdhichand Sarda (supra) remain a guiding light for the Courts
in regard to the proof of a case based on circumstantial evidence. Therein,
this Court referred to the celebrated decision in the case of Hanumant
v. State of Madhya Pradesh: AIR 1952 SC 343 and deduced five
golden principles of proving a case based on circumstantial evidence in
E the following terms:-
“152. It may be useful to extract what Mahajan, J. has laid down
in Hanumant case:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion
F 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
G 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.”

H
VAHITHA v. STATE OF TAMIL NADU 973
[DINESH MAHESHWARI, J.]

153. A close analysis of this decision would show that the following A
conditions must be fulfilled before a case against an accused can
be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the B
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra7 where the observations were made: C
“Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the D
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty,
(3) the circumstances should be of a conclusive nature and
tendency, E
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
F
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence.
155. It may be interesting to note that as regards the mode of G
proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus delicti, the statement of law as to proof
of the same was laid down by Gresson, J. (and concurred by 3
more Judges) in King v. Horry [1952 NZLR 111] thus:
7
(1973) 2 SCC 793.
H
974 SUPREME COURT REPORTS [2023] 3 S.C.R.

A “Before he can be convicted, the fact of death should be proved
by such circumstances as render the commission of the crime
morally certain and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and compelling as to
convince a jury that upon no rational hypothesis other than murder
can the facts be accounted for.”
B
156. Lord Goddard slightly modified the expression “morally
certain” by “such circumstances as render the commission of the
crime certain”.
157. This indicates the cardinal principle of criminal jurisprudence
C that a case can be said to be proved only when there is certain
and explicit evidence and no person can be convicted on pure
moral conviction...””
12.2. As regards inconsistencies and/or discrepancies in the version
of the witnesses, in the case of Shyamal Ghosh (supra) this Court has
D explained the distinction between serious contradictions and omissions
which materially affect the prosecution case and marginal variations in
the statement of witnesses in the following terms: -
“68. From the above discussion, it precipitates that the
discrepancies or the omissions have to be material ones and then
E alone, they may amount to contradiction of some serious
consequence. Every omission cannot take the place of a
contradiction in law and therefore, be the foundation for
doubting the case of the prosecution. Minor contradictions,
inconsistencies or embellishments of trivial nature which
do not affect the core of the prosecution case should not be
F taken to be a ground to reject the prosecution evidence in
its entirety. It is only when such omissions amount to a
contradiction creating a serious doubt about the truthfulness or
creditworthiness of the witness and other witnesses also make
material improvements or contradictions before the court in order
G to render the evidence unacceptable, that the courts may not be
in a position to safely rely upon such evidence. Serious
contradictions and omissions which materially affect the case of
the prosecution have to be understood in clear contradistinction to
mere marginal variations in the statement of the witnesses. The
prior may have effect in law upon the evidentiary value of the
H
VAHITHA v. STATE OF TAMIL NADU 975
[DINESH MAHESHWARI, J.]

prosecution case; however, the latter would not adversely affect A
the case of the prosecution.”
(emphasis supplied)
12.3. In the case of Bharwada Bhoginbhai Hirjibhai (supra),
this Court has explained that concurrent findings of fact cannot be
reopened in an appeal by special leave unless shown to be based on no B
evidence or inadmissible evidence or being perverse or suffering from
disregard of some vital piece of evidence. In that case the finding of
guilt concurrently recorded by the Trial Court and the High Court was
challenged mainly on the ground of minor discrepancies in the evidence
for which, this Court emphasised that excessive importance cannot be C
attached to such minor discrepancies. This Court explained the reasons
including that a witness cannot be expected to possess a photographic
memory; a witness is likely to be overtaken by events particularly of
unanticipated occurrence; the powers of observation differ from person
to person; by and large people cannot accurately recall the conversations
or the sequence of events; and a witness howsoever truthful is liable to D
be overawed by the Court atmosphere and piercing cross-examination
etc. The following passage from this decision could be usefully extracted
thus: -
“5……Their evidence has been considered to be worthy of
acceptance. It is a pure finding of fact recorded by the Sessions E
Court and affirmed by the High Court. Such a concurrent finding
of fact cannot be reopened in an appeal by special leave unless it
is established : (1) that the finding is based on no evidence or (2)
that the finding is perverse, it being such as no reasonable person
could have arrived at even if the evidence was taken at its face F
value or (3) the finding is based and built on inadmissible evidence,
which evidence, if excluded from vision, would negate the
prosecution case or substantially discredit or impair it or (4) some
vital piece of evidence which would tilt the balance in favour of
the convict has been overlooked, disregarded, or wrongly
discarded. The present is not a case of such a nature. The finding G
of guilt recorded by the Sessions Court as affirmed by the High
Court has been challenged mainly on the basis of minor
discrepancies in the evidence. We do not consider it appropriate
or permissible to enter upon a reappraisal or reappreciation
of the evidence in the context of the minor discrepancies H
976 SUPREME COURT REPORTS [2023] 3 S.C.R.

A painstakingly highlighted by learned Counsel for the
appellant. Overmuch importance cannot be attached to
minor discrepancies. The reasons are obvious:
“(1) By and large a witness cannot be expected to possess
a photographic memory and to recall the details of an incident.
B It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken
by events. The witness could not have anticipated the
occurrence which so often has an element of surprised.
The mental faculties therefore cannot be expected to be attuned
C to absorb the details.
(3) The powers of observation differ from person to
person. What one may notice, another may not. An object or
movement might emboss its image on one person’s mind,
whereas it might go unnoticed on the part of another.
D (4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a human
tape-recorder.
E (5) In regard to exact time of an incident, or the time duration
of an occurrence, usually, people make their estimates by guess-
work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable
estimates in such matters. Again, it depends on the time-sense
F of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
G
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination made by counsel and out of
nervousness mix up facts, get confused regarding sequence
of events, or fill up details from imagination on the spur of the
H
VAHITHA v. STATE OF TAMIL NADU 977
[DINESH MAHESHWARI, J.]

moment. The sub-conscious mind of the witness sometimes A
so operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and honest
account of the occurrence witnessed by him — Perhaps it is a
sort of a psychological defence mechanism activated on the
spur of the moment.”
B
(emphasis supplied)
12.4. In the case of Gangadhar Behera (supra), this Court again
highlighted that the normal discrepancies in evidence are of natural
occurrence in the Court, while observing as under: -
“15. Normal discrepancies in evidence are those which are due C
to normal errors of observation, normal errors of memory due to
lapse of time, due to mental disposition such as shock and horror
at the time of occurrence and those are always there however
honest and truthful a witness may be. Material discrepancies are
those which are not normal, and not expected of a normal person. D
Courts have to label the category to which a discrepancy may be
categorized. While normal discrepancies do not corrode the
credibility of a party’s case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi v. State of
Bihar [(2002) 6 SCC 81] .…..”
E
12.5. As regards the approach towards the appreciation of the
evidence of closely related witnesses, in the case of Gangabhavani
(supra), this Court has explained the principles as follows: -
“15…..It is a settled legal proposition that the evidence of closely
related witnesses is required to be carefully scrutinised and F
appreciated before any conclusion is made to rest upon it, regarding
the convict/accused in a given case. Thus, the evidence cannot
be disbelieved merely on the ground that the witnesses
are related to each other or to the deceased. In the case the
evidence has a ring of truth to it, is cogent, credible and trustworthy,
it can, and certainly should, be relied upon. (Vide Bhagaloo Lodhv. G
State of U.P.) [(2011) 13 SCC 206]”
(emphasis supplied)
12.6. In the case of Ramnaresh (supra), this Court has, though
recognised the right of the accused to maintain silence during investigation
H
978 SUPREME COURT REPORTS [2023] 3 S.C.R.

A as also before the Court in the examination under Section 313 CrPC but,
at the same time, has also highlighted the consequences of maintaining
silence and not availing opportunity to explain the circumstances
appearing against him, including that of the permissibility to draw adverse
inference in accordance with law. This Court observed and held as under:-
B “49. In terms of Section 313 CrPC, the accused has the freedom
to maintain silence during the investigation as well as before the
court. The accused may choose to maintain silence or
complete denial even when his statement under Section
313 CrPC is being recorded, of course, the court would be
entitled to draw an inference, including adverse inference,
C as may be permissible to it in accordance with law.
**** **** *****
52. It is a settled principle of law that the obligation to put material
evidence to the accused under Section 313 CrPC is upon the
D court. One of the main objects of recording of a statement under
this provision of CrPC is to give an opportunity to the accused to
explain the circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once he
does not avail this opportunity, then consequences in law
must follow. Where the accused takes benefit of this opportunity,
E then his statement made under Section 313 CrPC, insofar as it
supports the case of the prosecution, can be used against him for
rendering conviction. Even under the latter, he faces the
consequences in law.”
(emphasis supplied)
F
12.7. The principles enunciated by this Court in regard to the
obligation of explanation in terms of Section 106 of the Evidence Act
and the consequences of want of explanation have been explained by
this Court in the case of Satpal (supra) as follows: -
“6. We have considered the respective submissions and the
G
evidence on record. There is no eyewitness to the occurrence but
only circumstances coupled with the fact of the deceased having
been last seen with the appellant. Criminal jurisprudence and the
plethora of judicial precedents leave little room for reconsideration
of the basic principles for invocation of the last seen theory as a
H facet of circumstantial evidence. Succinctly stated, it may be a
VAHITHA v. STATE OF TAMIL NADU 979
[DINESH MAHESHWARI, J.]

weak kind of evidence by itself to found conviction upon the same A
singularly. But when it is coupled with other circumstances
such as the time when the deceased was last seen with the
accused, and the recovery of the corpse being in very close
proximity of time, the accused owes an explanation under
Section 106 of the Evidence Act with regard to the
B
circumstances under which death may have taken place. If
the accused offers no explanation, or furnishes a wrong
explanation, absconds, motive is established, and there is
corroborative evidence available inter alia in the form of
recovery or otherwise forming a chain of circumstances
leading to the only inference for guilt of the accused, C
incompatible with any possible hypothesis of innocence,
conviction can be based on the same. If there be any doubt or
break in the link of chain of circumstances, the benefit of doubt
must go to the accused. Each case will therefore have to be
examined on its own facts for invocation of the doctrine.”
D
(emphasis supplied)
12.8. In Satye Singh and Anr. v. State of Uttarakhand: (2022)
5 SCC 438,where the prosecution failed to prove the basic facts as
against the accused, this Court emphasised that Section 106 of the
Evidence Act does not relieve the prosecution of its primary duty to E
prove the guilt of the accused as follows: -
“19. …the Court is of the opinion that the prosecution had miserably
failed to prove the entire chain of circumstances which would
unerringly conclude that alleged act was committed by the accused
only and none else. Reliance placed by learned advocate Mr. Mishra F
for the State on Section 106 of the Evidence Act is also misplaced,
inasmuch as Section 106 is not intended to relieve the prosecution
from discharging its duty to prove the guilt of the accused….”
12.9. Apart from the above, we may also usefully take note of
the decision of this Court in the case of Sabitri Samantaray v. State of G
Odisha:2022 SCC OnLine SC 673. In that case based on
circumstantial evidence, with reference to Section 106 of the Evidence
Act, a 3-Judge Bench of this Court has noted that if the accused had a
different intention, the facts are specially within his knowledge which he
must prove; and if, in a case based on circumstantial evidence, the accused
evades response to an incriminating question or offers a response which H
980 SUPREME COURT REPORTS [2023] 3 S.C.R.

A is not true, such a response, in itself, would become an additional link in
the chain of events. This Court said, inter alia, as under: -
“19. Thus, although Section 106 is in no way aimed at relieving
the prosecution from its burden to establish the guilt of an accused,
it applies to cases where chain of events has been successfully
B established by the prosecution, from which a reasonable inference
is made out against the accused. Moreover, in a case based on
circumstantial evidence, whenever an incriminating question is
posed to the accused and he or she either evades response, or
offers a response which is not true, then such a response in itself
becomes an additional link in the chain of events.”
C
13.While keeping the aforesaid principles in view, and while
reiterating that wholesome reappreciation of evidence is not within the
scope of this appeal, we may examine if the concurrent findings call for
any interference in this case.
D 14. A few basic aspects are not of much controversy in this case,
essentially based on circumstantial evidence. The husband of the appellant
was mostly living abroad and the appellant was mostly living with her
parents at Kolakkudi. As per the version of the witnesses PW-1, PW-2
and PW-3, who supported the prosecution case as also as per the version
of PW-6 Jamal Mohammed, father of the appellant, who did not support
E the prosecution case and was declared hostile, this much remains
indisputable that on 18.06.2007, the appellant came with her father and
with her daughter to Perambalur from Kolakkudi. The victim child,
daughter of the appellant, met with her homicidal death on 21.06.2007.
15. The major disputable part of the matter is that as per the
F testimony of PW-6 Jamal Mohammed, on 20.06.2007, he left the victim
child with PW-1 Basheera and went back to Kolakkudi with his daughter,
that is, the appellant. According to the prosecution case, the appellant
remained very much in Perambalur with the victim child and in the morning
of 21.06.2007, she strangled the child when her mother-in-law (PW-1)
G was out of the house. According to PW-6 Jamal Mohammed, the appellant
was not in Perambalur at the relevant point of time; and she came to
Perambalur with him on 21.06.2007 in the late afternoon after receiving
information about demise of the child and thereafter, she was arrested.
Some of the other prosecution witnesses were also given the same
suggestions in the cross-examination. These aspects lead to the plea of
H
VAHITHA v. STATE OF TAMIL NADU 981
[DINESH MAHESHWARI, J.]

alibias has been referred to and relied upon by the learned counsel for A
the appellant.
15.1. 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 Jamal Mohammed, that on B
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 in Perambalur, 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 Sharfunisha, landlord of PW-1 and PW-5 C
Thiru-Jothi, 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 PW-2 and PW-3 but even if for the sake of argument
their testimonies are left aside for being directly related witnesses who D
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.
E
15.2. 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 Jamal Mohammed that the
appellant had travelled to Kolakkudi with him on 20.06.2007 and then
travelled back to Perambalur on 21.06.2007 is discarded, all other facts F
taken together lead to the logical conclusion that the plea of alibi is required
to be rejected.
16. Another major factor highlighted and elaborated by the learned
counsel for the appellant relates to certain discrepancies appearing in
the versions of PW-1 Basheera, as stated in the complaint made to the G
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 H
982 SUPREME COURT REPORTS [2023] 3 S.C.R.

A PW-1 Basheera, could only be considered to be normal and natural or
being the result of her want of proper comprehension.
16.1. PW-1 Basheera 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
B 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
C 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.
16.2. In our view, the Trial Court has rightly analysed the matter
D 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
E eatables in the morning while leaving the victim child with the appellant;
and after coming back, 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
F 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
G to the official witness PW-10 Subbulakshmi 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
H
VAHITHA v. STATE OF TAMIL NADU 983
[DINESH MAHESHWARI, J.]

the scene of crime including the independent witnesses PW-4 and PW- A
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.
16.3. Taking an overall view of the matter, we do 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 B
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 (supra) for which, the minor discrepancies do C
occur in evidence and excessive importance cannot be attached to them.
17. 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 established that the child suffered D
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.
PW-8 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 E
appellant and was said to be carrying blood stains.
18. 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 F
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.
G
19. 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
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984 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 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.
20. As regards the statement under Section 313 CrPC, the appellant
B 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
C with regard to the circumstances under which death may have taken
place, 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 (supra).
21. In an overall comprehension of the material on record and the
D findings recorded by the Trial Court and the High Court, in our view, no
case for interference with the concurrent findings of fact is made out.
22. 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
E 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
F 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.
23. In view of the above, this appeal fails and is, therefore,
dismissed.
G
Ankit Gyan Appeal dismissed.
(Assisted by : Keya Philomena Rebello and Mahendra Yadav, LCRAs)

H