'C.R.' Thottathil B.Radhakrishnan, J.
1. A biological mother challenges her conviction and the sentence imposed on her under Section 302 IPC, on the allegation that she killed her two new born daughters, just 35 days' old. We have heard the learned senior counsel appearing for her on benefit extended at State expenses and the learned public prosecutor.
2. The allegation against the accused is that she committed the offence punishable under Section 302 IPC, by oral administration of acid to her twin daughters aged 35 days, at about 3.30 p.m. on 25.02.2003, owing to her mental agony of having begotten them. The recorded legal evidence discloses that the accused had twin daughters earlier, who are alive.
3. Exts.P7 & P8 postmortem certificates, corroborated by the testimony of PW12, the Police Surgeon, are the legal evidences that the two infants died due to corrosive acid poisoning. Naturally, the court below was justified in holding that it is not a case of suicide. It could not also have been a case of the victims accidentally coming into contact with poisoning. Therefore, the court below had rightly concluded that the material evidence in that aspect establishes homicide.
4. Therefore, in substance, the question is as to whether the prosecution has established through cogent legal evidence or circumstances or inferences, etc. that the homicide of the two infants is attributable to the accused.
5. The learned senior advocate for the accused argued that there is no legal evidence which could be relied upon to sustain the conviction. He criticised the approach adopted by the court below in having relied on Ext.P1 F.I. Statement of PW1, who had turned hostile. It is argued that the testimony of the accused's father-in- law, PW6, was unworthy of credence and did not amount to any legal evidence to be used as against the accused. It is argued that, on the whole, there is absolutely no material to sustain the order of conviction.
6. The learned public prosecutor supporting the judgment of the trial court argued that in such a case, the chance of PW1 to PW5 turning hostile is always there and under such circumstances, the reliance placed by the Court of Session on the testimony of the investigating officer and as regards the recording and contents of Ext.P1 cannot be treated to be out of place. He also said that the totality of the evidence clearly points to the fact that the accused was the only adult available in the house of the accused at the time of the incident and her siblings, even going by Ext.P1 F.I. Statement, had come over to that home only on being notified that the children have gone sick. He, therefore, argued that the presence of the accused necessarily carries with it the inference as to the natural consequence that she had the custody and care of the infants, and therefore, without her knowledge the incident would not have happened. The view of the Court of Session that this is the natural sequence that has to be taken was attempted to be supported by the learned public prosecutor.
7. PWs 1 and 2 are accused's brothers. PW3 is her mother. PW4 is the daughter of accused's sister. PW5 is PW3's sister's daughter. PW6 is the father-in-law of the accused. PW1 to PW5 turned hostile completely, even according to the Court of Session.
8. PW1 admitted his signature on Ext.P1. That prompted the court below to go into Ext.P1 F.I. Statement and to act upon it, as if it is substantive evidence to be relied on to convict the accused. Along with that, PW6, the father-in-law of the accused, had made an attribute while preparing the inquest that he had heard that it was the father of the accused who had prompted her to commit the crime. Court below erred in law in relying on the contents of the statement given by PW16 at the time of inquest on the ground that PWs 1 to 5 have turned hostile. We may also note that the FSL Statement (Ext.P18) does not report the existence of any trace of acid in M.Os.1 and 2 - dresses of the accused, and MO7 - glass, which was allegedly used by the accused to administer acid to the victims.
9. As already noted, the accused mother of the alleged victims, and her siblings, as well as her other relatives, who were made witnesses, never spoke incriminating the accused or on the incident, which could be utilised against the accused. Nor has anything else come out through them as to any possibility, or even probability, to be substantially accepted in terms of the provisions of the Evidence Act.
10. Statements made during police investigation are not substantive evidence. Statements recorded under Section 161 Cr.P.C. can be used only for the purpose of contradiction and cannot be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1). A statement recorded under Section 161 may be used for the limited purpose of impeaching the credibility of a witness. It cannot by itself be treated as substantive evidence in a criminal trial. The statement recorded by the police under Section 161 Cr.P.C. cannot be used utilising any corroboration to it, by the investigating officer's oral testimony, to treat it as substantive evidence and enter a conviction, if the person whose statement so recorded, turns hostile to the prosecution while testifying. If the prosecution witness gives evidence contrary to the statement recorded under Section 161 Cr.P.C., the proof of the factum of recording of such statement under Section 161 as may be spoken to by the investigating officer who recorded that statement does not make the statement under Section 161 admissible as a whole to be treated as substantive evidence to enter a conviction with corroboration of the testimony of the investigating officer who had recorded that statement. This is the trite law. We would not have reiterated it having regard to the voluminous support by way of precedents, except because those cardinal doctrines have, unfortunately, escaped due consideration by the court of first instance.
11. Ext.P13 inspection memo of the accused shows that she had burn injuries somewhere near the knee and also on some part of her thigh. It has been recorded therein that the accused was forwarded to the Government Hospital for management of the injuries. Ext.P6 is the certificate issued by the Assistant Surgeon of the District Hospital, Kanhangad, following the examination of the accused on 27.02.2003 at 3.00 p.m. That records the identification marks of the accused and makes general findings on different aspects. Her vaginal examination had led to the opinion that there is evidence of delivery in the past, though the exact date of delivery could not be ascertained clinically at that point of time. However, significantly, the injuries noted in Ext.P13 inspection memo of the police officer are conspicuously absent in the certificate issued by the doctor after examination of the accused on the same day. We are therefore unable to hold that any credible reliability could be given to the inspection memo (Ext.P13) prepared by the police officer in preference to Ext.P6, the certificate issued on medical examination by the doctor.
12. Learned public prosecutor argued that having regard to the natural affinity between the mother and the infants and the care and caution that she would extend to them in the absence of any other person in the home at that time, it should necessarily be taken that the accused had the duty to explain the situation. On the totality of the facts, legal evidence, available circumstances and permissible inferences, presence of some other person or persons in the scene of occurrence, at the relevant time, cannot be ruled out. The facts and circumstances, in their totality, do not inspire confidence to rule out the availability or presence of somebody else in the scene of occurrence at or about the time of alleged incident. The father of the infants, who is the husband of the accused, is neither a witness nor an accused. He has not even been arrayed as a witness. The prosecution does not attribute any culpability to the father of the twins. We are unable to agree with the suggestion of the learned public prosecutor that had he been arrayed as a witness, he would also merely turn hostile. Attribute is made by his father, PW6, that the accused committed the crime at the instance of her father. The father of the accused is neither a witness nor an accused. Judicial conscience, which is primordial, in such situations, surges unequivocally.
13. If we have to adopt the approach taken by the court below and look into Ext.P1, the contents of which have been elaborately discussed by the learned Sessions Judge, that would unravel a story that one of the siblings of the accused got information that the infants had fallen sick and that he came to the house and heard the infants' cry; and thereupon, saw the accused administering some substance to the victims. We say this only to assure ourselves that the totality of the materials on record does not instill confidence in our mind and conscience to hold that it was the accused who had committed homicide of the infants.
14. Leaving aside the question of motive, we visualise another aspect. If the mere birth of the infants motivated the mother to kill them, we should also note that she had given those infants company and care for more than a month, 35 days, and the growth and consolidation of her maternal tie with those infants for those 35 days, goes much beyond the umbilicus, and is a clear indicator to the contrary of what is alleged. We may also note that the accused was already the mother of another set of twins, that too, females, even before she bore the victims. She had been bringing them up. We are unable to see the accused as one who would kill her twin daughters, when there is nothing on record to show the conduct or view of the father of those twins.
15. In the light of the above discussions, we cannot sustain the finding that the accused is guilty and the conviction and sentence imposed on her.
16. For the aforesaid reasons, this appeal succeeds.
In the result, this criminal appeal is allowed vacating the conviction and sentence passed by the court below as against the appellant. The appellant is acquitted and she shall be set at liberty forthwith. She shall be released from custody, if her continued presence in custody is not required in connection with any other case against her.
The Registry is directed to send the gist of the judgment forthwith to the prison concerned, where the appellant is undergoing incarceration.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.B.SURESH KUMAR, JUDGE) jg