IMPORTANT POINT
While considering the question whether the circumstantial evidence is inconsistent with the innocence of the accused, the standard to be adopted must be reasonable and not fantastic.

JUDGMENT

Sukumaran, J. - In the dark night of 14th January, 1980, (just three days prior to the new moon day which fell on 17.1.1980) two babies, Gini and Gina, found their watery grave. The children were born to the accused, aged 26, and his wife P.W. 6, aged 25. A cousin and neighbour of the accused, P.W. 1, rave Ext. P1 first information statement before the Head Constable P.W. 10 at 9.30 a.m. on 15.l.1980. Ext. P1 implicated the accused as the person responsible for the death of the children. A crime was registered Crime No.6 of 1980 of the Koratty Police Station. P.W. 10 prepared the inquest reports Exts. P4 and P5. The investigation was continued by P.W. 11 who took over the same on 16.1.1980. The accused was arrested on 25.2.1980. A charge was laid against him before the Judicial First Class Magistrate's Court, Chalakudy (where the case was registered as C.P. No. 23 of 1980) for offences punishable under Section 302 of the Indian Penal Code, of causing the death of the children by throwing them into the tank at 10.30 p.m. on 14.1.1980 with the intention that they should be drowned.

2. The accused pleaded not guilty. The prosecution examined eleven witnesses and produced six documents. The previous statements given by P.W. 3 and P.W. 6 were marked on the side of the accused, portions of the statement of P. W. 3 having been marked as Exts. D1 to D5 and those of P.W. 6 as Exts. D6 and D7. The learned Sessions Judge found the accused guilty of the offence of murder under two counts, for causing the death of the two children. A conviction was accordingly entered against him under Section 302 of the Indian Penal Code. He was sentenced to rigorous imprisonment for life for each of the murders, the sentence having been directed to run concurrently. The accused has come up before this court in appeal against the conviction and sentence passed against him by the court below.

3. According to the prosecution, there were frequent quarrels between the accused and his wife P.W. 6. She, therefore, left her matrimonial home a few days prior to the day of the tragic incident. She entrusted the children with a sister of the accused when she so left the house. The children were thereafter living with the accused in his house. The entreaties of the accused to his wife for her return home were unsuccessful. On the fateful day the accused carried with him the two children at about 10.30 in the night, proceeded to a tank situated in the property belonging to P. W. 9 and throw them into the tank.

4. There are no eye-witnesses to the incident. The conviction of the accused depends upon the evaluation of the circumstantial evidence in the case. That evidence consists of P.Ws. 1 to 3, P.W. 6 and P.W. 9. The witnesses P.Ws. 4 and 5 are doctors attached to the hospital at Chalakudi who conducted the postmortem and issued the certificated Exts. P2 and P3 in respect of the two children. P.W. 8 the Village Officer prepared the plan Ext. P6 giving the relevant details of the scene of occurrence. The Panchayat President of Koratty P.W. 7 is a witness to the inquests Exts. P4 and P5.

5. The first question calling for determination is whether the children had a homicidal death. Exts. P2 and P3 and the evidence of P.Ws, 4 and 5 clearly establish that the children died as a result of drowning. The cause of death was given as asphyxia due to drowning. A suggestion that the body was thrown into the water after death due to asphyxia for some other reason, was rejected by P.W. 4 who emphatically stated: "If the body is put into water after death due to asphyxia for some other reason, the frothy fluid in the cut section of the lungs will not be present. I am quite sure that the symptom of frothy fluid in the cut section of the lungs will not be present unless the body is put alive in water." The medical evidence, therefore, conclusively establishes that the children were thrown into the water when they were alive.

6. P.W. 6, the wife of the accused, has given e