CORAMTHE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.11.2011CORAMTHE HONOURABLE MR.JUSTICE C.NAGAPPANandTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCRIMINAL APPEAL No.383 of 20111. Selvam, S/o.Ganesan2. Thulasiammal, W/o.Selvam.. Appellants/Accused Nos.1 & 2vs.State, represented byThe Inspector of PoliceKaveripattinam Police Station, Krishnagiri DistrictCrime No: 1073 of 2005 .. RespondentCriminal Appeal preferred under Section 374(2) r/w 382 of theCode of Criminal Procedure against the judgment of the PrincipalSessions Judge, Krishnagiri, made in S.C.No.115 of 2008, dated07.06.2011.For Appellants: Mr.A.Ramesh, senior counsel for M/s.C.Arun KumarFor Respondent: Mr.V.M.R.Rajendiran Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by T.SUDANTHIRAM, J.)The appellants herein are accused 1 and 2 in S.C.No.115 of 2008on the file of the Principal Sessions Judge, Krishnagiri and thefirst accused stands convicted for the offence under Section 302 IPCand sentenced to undergo life imprisonment and to pay a fine ofRs.1,000/- in default to undergo rigorous imprisonment for six monthsand accused 1 and 2 stand convicted for the offence under Section 201r/w 302 I.P.C. and sentenced to undergo rigorous imprisonment forseven years and to pay a fine of Rs.1,000/- in default to undergorigorous imprisonment for six months. The sentence of imprisonmentimposed on the first accused would run concurrently. Challenging thesaid conviction and sentence, the appellants have preferred thiscriminal appeal.2. The charges against the appellants/accused, are that thesecond accused, who is the wife of the first accused, gave birth of afemale child, and as they already had a female child, the firstaccused administered tobacco juice to the four days' new born female https://hcservices.ecourts.gov.in/hcservices/ child and caused the death of the child and that both the accused, inorder to conceal the offence, buried the child.3. In order to establish the case, the prosecution examinedP.Ws.1 to 11 and marked Exs.P1 to P15 and produced M.Os.1 and 2.4. The evidence let in by the prosecution, in brief, are asfollows:(a) P.W.1 is the Village Administrative Officer ofGundallapatti Village, Krishnagiri District. He gave Ex.P1 complaintto P.W.9 Inspector of Police, Kaveripattinam Police Station statingthat the second female child born to accused no.2 on 25.11.2005 wasdead and buried in their field and he suspected the death of thechild. P.W.2, nurse of Primary Health Centre of Gundalapatti,deposed that on 25.11.2005, the first accused brought his wife/secondaccused, as she was having labour pain and she delivered a femalechild at 11.45p.m. After 3 days when she went to the house of theaccused to give medicine, she came to know that the child died.P.Ws.3 and 4, who are the neighbours of the accused, and P.W.5,father of the first accused, did not support the prosecution case andhence they were treated as hostile witnesses. (b) P.W.8, Inspector of Police, Kaveripattinam Police Station,on receiving Ex.P1 complaint from P.W.1, registered a case in CrimeNo.1073 of 2005 under Section 174 Cr.P.C. on 06.12.2005 and preparedEx.P8 First Information Report. P.W.11, Deputy Inspector of Police,on receiving copy of the first information report, took up the casefor investigation and went to the scene of occurrence and examinedP.Ws.1, 2, 3, 4 and one Murugesan and recorded their statements. Healtered the case into one under Sections 302 and 201 I.P.C. andprepared Ex.P12 altered report. He also gave a requisition to theTahsildar at Krishnagiri to exhume the body and conduct postmortem. (c) P.W.10 Tahsildar, Krishnagiri on receiving requisition, wentto the scene of occurrence and exhumed the body of the female childand conducted inquest in the presence of panchayatars and preparedEx.P9 inquest report and also prepared Ex.P10 Observation Mahazar.After the inquest, he sent Ex.P11 report to the Judicial Magistrate. (d) P.W.6 Doctor, on receiving Ex.P2 requisition, conductedautopsy over the body of the deceased child on 07.12.2005 at 5.15p.m. and noticed the following:"The body was first seen by the undersigned at5.00 P.M. on 7.12.05. Its condition then was Decomposedbody. Post-mortem commenced at 5.15 P.M. on 7.12.05.Appearances found at the post-mortem Decomposed FemaleNeonate exhumed. Seen that body wrapped with yellowouter cloth. Lungi and flowered green cloth. Around hipblack color (miu ehd; fapW). Face totally decomposed,eyes, ears, nose are not differentiated. Hair Dark 4 cmlength. Peeled off skin. Body skin are peeled off. Length of the foetus 35 cm. https://hcservices.ecourts.gov.in/hcservices/ Breadth about 10 cm.... tied by thread. Some Lungi cloth is (thread like)seen and .... genitals are decomposed. Int. Exam: Brain Liquid. Skull bone identified.Lungs... totally decomposed. Blood stained. Heartchamber empty.Intestine, Liver, Kidney are preserved for and stomachalso preserved.Hyoid bone intact (Hyoid bone with skin tissue arepreserved).PM concluded at 6.15 PM.Duration of Death – As per condition of decomposed maybe more than 1 week.Opinion as to cause of death -(a) Reserved pending report of – cause of death.Reserved for chemical analysis report.Final opinion:As per chemical analysis report No.TOX.61-26/2006,Vellore, detected Nicotine poison.The Doctor preserved internal parts of the body for chemicalexamination and expressed opinion that the death was due to nicotinepoison leading to respiratory arrest and death. Ex.P4 is thepostmortem certificate issued by him.(e) P.W.11 on the same day at about 3.00 p.m. recorded theconfession statement of the first accused in the presence of P.W.7and another. Ex.P5 is the admissible portion of confessionstatement. Pursuant to the confession statement, he recoveredM.Os.1 and 2, ever silver tumbler and spout bowl from the house ofthe accused under Ex.P6 Mahazar in the presence of the samewitnesses. At 4.00 p.m. he prepared Ex.P7 Observation Mahazar andEx.P12 Rough Sketch in the presence of the same witnesses. Heremanded the accused to judicial custody at 9.00 p.m. On18.12.2005, he sent requisition to P.W.10 for sending the internalparts of the deceased to the chemical analysis. He also gave Ex.P14requisition to the Judicial Magistrate for sending the materialobjects for chemical analysis. He examined P.W.6 and recorded hisstatement on 01.02.2006. On completion of the investigation, hefiled a charge sheet against the accused under Section 302 r/w 201I.P.C. on 02.02.2006.5. After completion of the recording of the evidence of theprosecution witnesses, the accused were questioned under Section 313Cr.P.C. and they denied their complicity. On the side of thedefence, no witness was examined and no document was marked. Thetrial Court after analysing the evidence, convicted and sentenced theaccused as stated above.6. The learned senior counsel Mr.A.Ramesh appearing for theappellants/accused, submitted that there is no direct witness to theoccurrence and there is no direct material to connect the accused https://hcservices.ecourts.gov.in/hcservices/ with the alleged crime. The prosecution case though rests upon thecircumstantial evidence, did not connect the accused to the allegedcrime with proved circumstances. He further submitted that thoughP.W.6 Doctor has given opinion that the deceased child died due tonicotine poison resulting in respiratory arrest of the child, notoxicological report was received from the Forensic Departmentregarding the internal parts of the deceased child. The Doctor hasgiven his final opinion based on Ex.P.3 toxicological report, whichrelates only to M.Os.1 and 2. The prosecution has not evenestablished that the child died due to administering poison ofnicotine. The learned senior counsel further submitted that therecovery of M.Os.1 and 2 and the detection of nicotine poison inthose vessels should not be accepted, as they were recovered ninedays after the alleged occurrence and the containment of poison inthose vessels was only artificial. Mere recovery of M.Os.1 and 2would not lead to an inference that nicotine poison was administeredto the child. The learned senior counsel further pointed out thatP.W.10 Tahsildar, who conducted inquest over the body of thedeceased, gave Ex.P11 report, in which he has mentioned about theconfession statement of the first accused, but he had notspecifically spoken about it in his chief examination. Evenotherwise, when the statement was obtained from the first accused, hewas in the police custody and hence the alleged confession statementis hit by Section 26 of the Indian Evidence Act.7. Per contra, the learned Additional Public Prosecutorsubmitted that the second accused gave birth to a second female childis an admitted fact and the child, which was alive for three days,had been buried in the night hours and the accused had not comeforward with any explanation for burying the child. The recovery ofM.Os.1 and 2 is a substantial piece of evidence, in which, as perEx.P3 toxicological report, nicotine poison was detected and thePost-mortem Doctor also gave his final opinion that the death of thechild was due to respiratory arrest because of administeringnicotine poison. He further submitted that when the confessionstatement of the first accused was recorded by P.W.10, he was not inthe police custody. Therefore, it is an extra judicial confessiongiven by the first accused before P.W.10 Tahsildar and that issufficient to convict the first accused.8. We have carefully considered the rival submissions andperused the records.9. The main charge against the accused is that the first accusedhad administered nicotine poison to the four days' old female childand thereafter the body of the child was buried. In order toestablish this charge, there is no direct eye witness to theoccurrence and there is no direct material in this case. Theprosecution rests purely on circumstantial evidence, which are asfollows:(i) The child died due to administration ofnicotine poison;(ii) The first accused had admitted about hisguilt and had given a statement before P.W.10 Tahsildar https://hcservices.ecourts.gov.in/hcservices/ during inquest;(iii) Recovery of M.Os.1 and 2 in pursuance of theconfession statement of the first accused, in which, asper Ex.P3 toxicological report, nicotine poison wasdetected. Now, we have to analyse whether each circumstance is establishedby the prosecution and if so, whether they lead to the guilt of theaccused 1 and 2. 10. With regard to the first circumstance that the child dieddue to administration of nicotine poison, P.W.6 Doctor, who conductedpostmortem on 07.12.2005, gave his final opinion on 01.02.2006. Inhis final opinion, he had stated that the death of the child was dueto nicotine poison, which led to respiratory arrest. The Doctor hadadmitted that he gave his opinion based on the toxicological reportNo.26 of 2006, which was marked as Ex.P3 by the prosecution. Aperusal of Ex.P3 shows that the toxicological report relates toM.Os.1 and 2, ever silver tumbler and ever silver spout bowl(paladai) in which nicotine was detected. Absolutely, there is norecord to show that the internal parts of the deceased child was sentfor chemicals analysis to get a toxicological report. In the absenceof the said report, we are unable to understand how the Doctor gavesuch an opinion based on Ex.P3 toxicological report, which relatesonly to M.Os.1 and 2 articles. If this opinion of the postmortemDoctor is unacceptable, then the cause of death of the child ashomicidal remains un-established by the prosecution. The contentionof the learned Additional Public Prosecutor that the accused failedto give explanation as to how the child died and it stands as acircumstance against the accused, is only to be rejected, since onlywhen the prosecution establishes the fact that the child died due tounnatural cause, the burden is shifted on the accused, in whosecustody the child was, to explain as to how the child died.11. With regard to the second circumstance that the statementrecorded by P.W.10 Tahsildar from the first accused during theinquest conducted by him, which amounts to extra judicial confessionstatement, it is to be seen now, whether it could be accepted andacted upon it. P.W.10, Tahsildar while giving evidence in his chiefexamination, had not deposed that he recorded the statement of thefirst accused. Though the report of P.W.10 (Ex.P11) contains aboutthe particulars of the statement given by the first accused and thesigned statement of the first accused forms part of Ex.P11, P.W.10has failed to give evidence specifically regarding the confessionstatement said to have been given by the first accused. This beingan incriminating circumstance, specific evidence ought to have beenlet in by the prosecution. The trial Court has also failed to noticeit. With regard to this incriminating circumstance, no question isput to the first accused while he was questioned under Section 313Cr.P.C. Furthermore, a contention was raised by the learned seniorcounsel for the appellants that the first accused had already beentaken into police custody and as such, the statement given by thefirst accused to P.W.10 while he was in police custody is hit bySection 26 of the Indian Evidence Act. A perusal of the statementgiven by the first accused to P.W.10 reveals that it was prepared https://hcservices.ecourts.gov.in/hcservices/ after the completion of postmortem examination of the body of thedeceased child. The postmortem was conducted at 5.15 p.m. Accordingto the evidence of P.W.11 Investigating Officer, he had recorded theconfessional statement of the first accused even at 3.00 p.m. andrecovered M.Os.1 and 2 at 5.10 p.m. in pursuance of the confessionstatement. If it is so, it could be said that the first accused wasin the custody of the police at the time of preparing the statementof the first accused said to have given to P.W.10. In the saidcircumstances, we are of the view that no reliance can be placed onthe statement said to have been given by the first accused to P.W.10.12. With regard to circumstance no.3 that M.Os.1 and 2 eversilver tumbler and spout bowl (paladai) were recovered from thehouse of the accused in pursuance of his confession statement, it isnot denied by the first accused that those properties were recoveredfrom his house. M.Os.1 and 2 were recovered eight days after theoccurrence and in both the material objects, as per the toxicologicalreport, nicotine was detected. The circumstance nos.1 and 2 beingnot established by the prosecution, it is not possible to convict theaccused relying on the third circumstance alone. 13. It is well settled proposition of law that in order to bringhome the guilt of the accused on the basis of the circumstantialevidence, the prosecution has to establish that the circumstancesproved lead to one and only conclusion towards the guilt of theaccused. The circumstances so proved must unerringly point towardsthe guilt of the accused, forming a complete chain and thereby notgiving any room for other hypothesis than the guilt of the accused. 14. In this case, the prosecution having failed to establishthrough medical evidence that the child died due to unnatural causeand in the absence of any other clinching circumstance against theaccused, we hold that the prosecution has miserably failed to provethe charges against the accused.15. In the result, the criminal appeal is allowed and theconviction and sentence imposed by the Principal Sessions Judge,Krishnagiri in S.C.No.115 of 2008, dated 07.6.2011, on theappellants/accused 1 and 2, viz., Selvam and Thulasiammal are setaside and they are acquitted of all the charges. Fine amount, ifany, paid by them, shall be refunded to them. Appellants/accused 1and 2 viz., Selvam and Thulasiammal are ordered to be releasedforthwith, unless their custody is required in connection with anyother case. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarATR https://hcservices.ecourts.gov.in/hcservices/ To:1. The Principal Sessions Judge Krishnagiri.2. The Chief Judicial Magistrate Krishnagiri.3. The Judicial Magistrate No.1, Krishnagiri (PRC No.9/2006)4. The Inspector of Police, Kaveripattinam Police Station Krishnagiri District.5. The Superintendent of Prisons Central Prison, Vellore.6. The Superintendent of Prisons Central Prison, Women Wing, Vellore.7. The District Collector Krishnagiri District, Krishnagiri.8. The Director General of Police Mylapore, Chennai 4.9. The Public Prosecutor High Court, Chennai 104.1 cc to M/s.C.Arun Kumar , Advocate, Sr.No.70831CRL.A.No.383 of 2011ss(co)pmk.1.12.2011