The court can determine the cause of death in cases of homicide by drowning despite the absence of positive medical evidence. Recitals in the inquest report are admissible as evidence, and the existence of a fact cannot be sidelined merely because another person has omitted to notice it.

Thomas, J.

When a panchayat member saw the dead body of a woman floating in the river beneath Pulikcczhu bridge, he promptly reported the matter to the local police. The dead body was later identified as that of one Pathumma Beevi, who was mother of six children and grandmother of two children. After investigation, police alleged that Pathumma beevi was murdered by the appellant who is a relative of her husband. Sessions Judge convicted him of Ss.302 and 392 of the Indian Penal Code and sentenced him to imprisonment for life and rigorous imprisonment for 7 years, respectively. He has lilcd this appeal.

2. Prosecution case is that when appellant met Pathumma beevi on 25-10-1988 at the house of her husband's nephew (one Alikulty, who had come on leave from a Gulf country) appellant decoyed her to the place where she died by pretending that he would get cloth pieces from his friend's house. The further case is that when they reached near the place, appellant pushed her into the river and kept her immersed in water forcibly until she died and then removed her gold ornaments worth Rs.4,300/-.

3. The dead body was first spotted on the morning of 26-10-1988 by a girl whose residence was in the vicinity of Pulikeezhu bridge. She informed the local panchayat member (PW.1) about it. The clothes worn on the dead body indicated that she was a Muslim woman, and hence the body was buried in the burial ground attached to a mosque after holding the inquest and conducting the autopsy.

4. When Pathumma beevi did not return from Alikutty's house on the same night her husband assumed that she would have stayed there over night. But he became 'anxious when he knew later that she had left his nephew's house on the same night in the company of the appellant and so he made enquiries at other places. On 27-10-1988 morning he came to know that the dead body of a woman was recovered from Pulikeezhu river and then he went to the police station and realised from the photos of the dead body that it was the dead body of his wife.)

5. As all the ornaments worn by Pathumma Beevi were not seen on the dead body (except a waist chain and one ear stud) police suspected that the death could have been a case of homicide for gain. On 29-10-1988 appellant was arrested and on the basis of his information, a gold chain was recovered from one Baladevan (PW.6) and the other items were recovered from the drawer of a table in the house of Alikutty.

6. There is no dispute now that the dead body described in Ext.P2 inquest report was that of Pathumma beevi. Hence we need not labour on the question of identity of corpus delicti in this case. The main contention raised by the learned counsel for the appellant is that prosecution has failed to prove that the appellant had taken the gold ornaments of Pathumma Beevi. He contended, alternatively, that at the worst appellant can be convicted only of the offence under S.404 of the Indian Penal Code.

7. The circumstances pitted against the accused are the following: (1) Dead body of the deceased was found floating in the river beneath Pulikeezhu bridge on the morning of 26-10-1988 and it was a case of drowning (2) Appellant and deceased were found together on the night of occurrence within close proximity to Pulikeezhu bridge (3) Deceased was wearing gold ornaments including M.Os. 6 to 9, but those ornaments were missing on the dead body when it was found floating in the river. (4) Pinna of the ear showed a tear indicating that atleast one ear ornament was forcibly plucked off (5) Appellant was in possession of M.0.6 gold ornament on 26-10-1988 and he was later found to be in possession of M.Os. 7 to 9 gold ornaments also.

8. First circumstance referred to above was spoken to by P.W.I, the Panchayat member. Ext.P2 inquest report also lends credence to it. Dr.Sreekumran Nair (PW.22) who conducted the autopsy has expressed his undoubted opinion that death was due to drowning. All the data provided in Ext.P5 post mortem certificate