High Court · 2009

Bail SlipThe Appellants A2 / Accused No.2 namely Chinnapaiyan wasdirected to release on bail as per order dated 4.12.2007 and amdein Crl.M.P.NO.1/07 in Crl.A.1048/07 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13 .4.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANandTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCriminal Appeal No.1048 of 2007 1. KalaiyarasiW/o.Venkatachalam2.ChinnapaiyanS/o.Muniya Gounder .. Appellants/Accused Nos.1 and 2 -Vs-State represented bythe Inspector of Police,Deevattipatti Police Station,Salem District.(Crime No.1015/2000) .. Respondent/ComplainantPrayer: Appeal against the judgment of conviction and sentenceimposed on the accused in S.C.No.33 of 2007, dated 13.11.2007, onthe file of First Additional Sessions Judge, Salem.For Appellants :: Mr.V.Gopinath Senior Counsel for M/s.V.S.Sethuraman, K.Selvarangam For Respondent :: Mr. V.R.Balasubramaniam Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered by C. NAGAPPAN, J.) The appellants are Accused Nos.1 and 2 in SessionsCase No.33 of 2007 on the file of First Additional Sessions Judge,Salem and they have preferred the appeal challenging theconviction and sentence imposed on them in the case. For thesake of convenience, in this Judgment, the appellants will bereferred to as Accused Nos.1 and 2. 2. Accused No.1-Kalaiyarasi was convicted by thelearned First Additional Sessions Judge under Section 302 IPC andsentenced to undergo life imprisonment and to pay a fine ofRs.5000/-, in default, to undergo Rigorous Imprisonment for oneyear. Accused No.2-Chinnapaiyan was convicted for theoffence under Section 201 read with 302 IPC and sentenced toundergo Rigorous Imprisonment for four years and to pay afine of Rs.5000/-, in default, to undergo Rigorous Imprisonmentfor six months. 3. To prove its case, the prosecution examined P.Ws.1to 13 and marked Exs.P1 to P16 and M.Os.1 and 2. 4. The case of the prosecution, as could be discerned fromoral and documentary evidence, can be briefly summarised asfollows. P.W.1-Kamala is the wife of Accused No.2-Chinnapaiyan. Accused No.1-Kalaiyarasi is their daughter. P.W.2-Akilandam is the elder sister and P.W.3-Parvathi is the youngersister of Accused No.2-Chinnapaiyan. A1-Kalaiyarasi got marriedto Venkatachalam, the son of P.W.3-Parvathi and they have twofemale children. A1-Kalaiyarasi conceived for the third time andshe was admitted for delivery at 10 am on 7.10.2000 inGovernment Primary Health Centre, Kaadayampatti and P.W.8-Dr.T.Rajendran attended on her and she delivered a female baby at11.45 am and she was discharged on the same day at 6 pm andEx.P5-Birth Register extract contains the relevantentry. P.W.7-Village Administrative Officer of Kanavaipudur,Azhakiyamanavalan received information that the third female childborn to A1-Kalaiyarasi died on 10.10.2000 and the body was buriedin the backyard of the house and suspecting female infanticide, https://hcservices.ecourts.gov.in/hcservices/ he passed information to P.W.4-Deputy Tahsildar Ananthakrishnanand he went to Deevattipatti Police Station at 4 pm on 12.10.2000and gave Ex.P1-written complaint and P.W.13-Inspector Muniappanregistered a case in Crime No.1015/2000 under Section 174 Cr.P.Cand prepared Ex.P14-First Information Report and despatched thesame to the Court. He gave Ex.P8-written requisition to OmalurTahsildar to exhume the body and conduct inquest. P.W.9-Tahsildar M.Jegarajan went to the house of A2-Chinnapaiyan on13.10.2000 and A2-Chinnapaiyan showed a rubbish pit behind hishouse and the place was dug and the body of the female child wasexhumed and P.W.9-Tahsildar M.Jegarajan conducted inquest on thebody by examining the witnesses and prepared Ex.P9-Inquest report.Ex.P6 is the Plan showing the place where the infant was buriedand Ex.P7 is the copy of Field Map of the place.On requisition, P.W.12-Dr.Vallinayagam conducted post-mortemon the body in the place at 10.30 am on 13.10.2000 and found thefollowing:"Appearances found at the post-mortemEarly decomposed body of a female child.Externally no ante-mortem injuries present.Peeling of scalp hair present. Peeling of skinpresent.Internal: Plural cavity empty. Peritonealcavity empty. Heart empty, flabby; Left hyoidbone intact. Oral cavity five (5) raw paddygrain present. Lungs intact, Trachea three(3) raw paddy grain present.Lungs: Right lung 5 (five) raw paddy grainpresent in major bronchi. Oozing of bloodpresent. Left lung 4 (four) raw paddy grainpresent. Oozing of blood present stomachhemorrhagic spots present in the posterior walltwelve (12) raw paddy grain present in thegastro duodenal junction. Liver, spleen, kidneys pale andearly decomposed. Intestines: empty;Bladder: empty; Uterus: infantile;Impression: A case of female infanticide."He expressed opinion that the deceased would appear to have diedof asphyxia as a result of suffocation, 2-5 days prior to post-mortem and issued Ex.P12-Post-mortem Certificate. After thepost-mortem, P.W.11-Head Constable Venkatachalam took M.O.2-Whitecloth found on the body and produced the same to P.W.13-InspectorMuniappan. P.W.13-Inspector Muniappan at the occurrence place preparedEx.P2-Observation mahazar in the presence of P.W.7-V.A.OAzhakiyamanavalan and another and Ex.P15 is the Rough Sketch. He https://hcservices.ecourts.gov.in/hcservices/ took Ex.P10 (series)-Photographs of the place and the body of theinfant through P.W.10-Photographer Vijayakumar. He receivedEx.P9-Inquest Report and altered the case into one under Section302 IPC and prepared Ex.P16-Express Report. He arrestedA1-Kalaiyarasi and A2-Chinnapaiyan and at 6 am on 14.10.2000 nearMuthanampatti Mariamman Temple and enquired A1-Kalaiyarasi in thepresence of P.W.7-V.A.O Azhakiyamanavalan and another andrecorded her confession statement in their presence. Ex.P3 isthe admissible portion of the confession statement. A1-Kalaiyarasi took them to their house and produced M.O.1-PaddySeeds and he seized them under Ex.P4-mahazar in the presence ofsame witnesses. He sent the accused for judicial remand.He examined P.W.5-Ranganathan, P.W.6-Murugesan, P.W.7-V.A.OAzhakiyamanavalan and P.W.11-Head Constable Venkatachalam on thesame day and recorded their statements. He examined P.W.12-Dr.Vallinayagam, P.W.10-Photographer Vijayakumar and P.W.8-Dr.Rajendran and recorded their statements. He received Ex.P13-Viscera Report and completed the investigation and filed finalreport against the Accused Nos.1 and 2 on 17.1.2001.5. Both the accused were questioned underSection 313 Cr.P.C and they denied complicity. No witness wasexamined and no document was marked on their side.6. The Trial Court found that the charges framed againstthe accused are proved and convicted and sentenced them as statedabove. Challenging the conviction and sentence, Accused Nos.1and 2 have preferred the present appeal. 7. Mr.V.Gopinath, learned Senior Counsel appearing forthe appellants/Accused Nos.1 and 2, submits that the case is basedupon only circumstantial evidence and the prosecution has notadduced clinching and incriminating circumstances leading to aninference that first appellant/Accused No.1-Kalaiyarasi aloneadministered paddy seeds to the infant resulting in death and inso far as second appellant/Accused No.2-Chinnapaiyan is concerned,at the best it can be inferred that he had known the place wherethe child was buried and no further inference could be drawn thatan offence has been committed with regard to the death of thechild and hence the conviction and sentence imposed on theappellants/Accused Nos.1 and 2 are liable to be set aside. 8. Per contra, Mr.V.R.Balasubramaniam, learnedAdditional Public Prosecutor, submits that the infant was only inthe custody of first appellant/A1-Kalaiyarasi and as per themedical testimony, the death has occurred due to administeringpaddy seeds and it is for the mother to explain as to how thedeath has occurred and there is no explanation forthcomingfrom her side and the prosecution has proved the charge as against https://hcservices.ecourts.gov.in/hcservices/ first appellant/A1-Kalaiyarasi is concerned and in so far as thesecond appellant/A2-Chinnapaiyan is concerned, he had causeddisappearance of evidence of offence, with an intention to screenthe offender viz. his daughter and the conviction and sentenceimposed on them are sustainable. In support of hissubmission, he relies on a decision of a Division Bench of thisCourt in ANJALA @ KAMATCHI v. STATE REP. BY INSPECTOR OF POLICE(2008) 2 MLJ (Crl) 1492). 9. By way of reply, the learned Senior Counsel appearing forthe appellants/Accused Nos.1 and 2, in support of his submission,relies on the following three decisions rendered by variousDivision Bench of this Court."1. Unreported decision, dated 10.12.2004, in CriminalAppeal No.419 of 1996 (KANNAMMAL Vs. STATE REP. BYTHE INSPECTOR OF POLICE) 2. Unreported decision, dated 12.10.2006, in CriminalAppeal No.1303 of 2004 (SUGUNA Vs. STATE REP. BY THEINSPECTOR OF POLICE) 3. KALIAMMAL v. STATE REP. BY INSPECTOR OF POLICE(2008-2-L.W. (Crl.) 923)"10. It is not in dispute that A1-Kalaiyarasi conceived forthe third time and was admitted for delivery at 10 am on 7.10.2000at Government Primary Health Centre, Kaadayampatti and P.W.8-Dr.Rajendran attended on her and she delivered a female baby at11.45 am and she was discharged on the same day at 6 pm and Ex.P5is the Birth Register extract containing the relevant entry.Accused No.1-Kalaiyarasi, in her examination under Section 313Cr.P.C, has admitted the testimony of P.W.8-Dr.Rajendran andEx.P5-Birth Register extract as true. The infant was exhumed byP.W.9-Tahsildar Jegarajan and Ex.P9 is the inquest report.P.W.12-Dr.Vallinayagam conducted post-mortem on the body and foundraw paddy grain during internal examination of lungs and tracheaand he had expressed opinion stating that the deceased wouldappear to have died of asphyxia as a result of suffocation.Ex.P12 is the Post-mortem Certificate. Accepting his testimony,it becomes clear that the infant suffered homicidal death.11. Admittedly, nobody witnessed the occurrence and theprosecution relies on circumstantial evidence only. Theoccurrence is said to have taken place in the house of A2-Chinnapaiyan while the child was in the custody of motherviz.,A1-Kalaiyarasi and accused No.1 gave information in her statementleading to the recovery of M.O.1-Paddy Seeds. No doubt, it istrue that the post-mortem doctor has found paddy seeds in the https://hcservices.ecourts.gov.in/hcservices/ internal organs of the body of the infant. As per thestatement of Investigation Officer P.W.13-Inspector Muniappan, A1-Kalaiyarasi gave information in Ex.P3-admissible portion of herconfession statement and took them to her house and producedM.O.1-Paddy seeds and he seized them under Ex.P4-mahazar in thepresence of P.W.7-V.A.O Azhakiyamanavalan and another. Paddyseeds are already available in the house of A2-Chinnapaiyan andM.O.1-Paddy Seeds are only sample seeds and they have noconnection with the crime and the above recovery does not help theprosecution case as a circumstance against the accused.12. P.W.1-Kamala is the wife of A2-Chinnapaiyan andmother of A1-Kalaiyarasi and she was present in the house alongwith A1 and A2 on the occurrence day. Hence it cannot be presumedthat it is only A1-Kalaiyarasi administered the paddy seeds tothe infant and in order to implicate her for the commission ofthe offence, the prosecution is bound to adduce some moreincriminating materials to connect her with the alleged crime,which is absent in the present case. 13. In the decision in ANJALA'S CASE (referred tosupra), relied on by the learned Additional Public Prosecutor, theDivision Bench observed that a strong circumstance against theaccused was that A-2 had gone to the extent of even denying thefactum of conceivement of his wife A-1 and the consequential birthof the deceased infant, only to show their involvement in theoccurrence and there were other incriminating circumstances andhence conviction and sentence require no interference. In thepresent case, as already seen, the accused have not denied thefact of birth of child.14. In the decision in KANNAMMAL'S CASE (cited supra)and in the decision in SUGUNA'S CASE (referred to above), themother of the infant was the first accused and the charge againsther was that she administered Erukkampal poison to the child andtwo different Division Bench of this Court held that there wereother persons available in the same house on the occurrence dayand in the absence of direct evidence pointing to the fact that itwas the mother who administered the poison to the infant, themother cannot be fastened with the liability of administeringpoison to the infant. 15. In the decision in KALIAMMAL'S CASE (cited supra),the accused was the grandmother of the child and the DivisionBench observed that even assuming that the occurrence took placeinside the house, it cannot be presumed that the accusedgrandmother administered the poison to the child and in order toimplicate the accused for the commission of the offence, theprosecution is bound to adduce some more incriminating materials https://hcservices.ecourts.gov.in/hcservices/ to connect her with the crime and the prosecution has failed toadduce the same. In the present case also, there is no directevidence pointing to the fact that it is A1-Kalaiyarasi whoadministered paddy seeds to the infant. The settled principle oflaw is that suspicion however strong cannot take the place ofproof and in the absence of incriminating material orcircumstance, it is not safe to convict Accused No.1-Kalaiyarasifor the charge of female infanticide.16. In so far as the charge against A2-Chinnapaiyan isconcerned, P.W.9-Tahsildar Jegarajan has stated that he went tothe house of A2-Chinnapaiyan on 13.10.2000 and accused No.2 showedthe rubbish pit behind his house and that place was dug and thebody of female child was exhumed. We have already concluded thatthe prosecution has not established the charge of murder of theinfant as against A1-Kalaiyarasi. In such circumstance, itcannot be said that A2-Chinnapaiyan had known that offence hasbeen committed in respect of the death of infant and with theintention of screening the offender he had caused the evidence ofcommission of offence to disappear.17. Therefore, we hold that the prosecution has not provedthe case as against both the accused beyond reasonable doubt andthe conviction and sentence imposed on them by the Trial Court areliable to be set aside. 18. In the result, the Criminal Appeal is allowed andthe conviction and sentence imposed on the appellants/AccusedNos.1 and 2 in Sessions Case No.33 of 2007 on the file of FirstAdditional Sessions Judge, Salem are set aside and theappellants/Accused Nos.1 and 2 are acquitted of all the chargesand the fine amount paid, if any, is to be refunded to them. TheBail bond executed by Accused No.2-Chinnapaiyan shall standcancelled. The appellant No.1/Accused No.1-Kalaiyarasi is directedto be released forthwith if her custody is not required in anyother case.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvks https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional Sessions Judge, Salem.2. -do- through the Principal District and Sessions Judge, Salem.3. The District Munsif cum Judicial Magistrate, Omalur.4. -do- through the Chief Judicial Magistrate, Salem.5. The Inspector of Police, Deevattipatti Police Station, SalemDist.6. The Superintendent, Special (Women) Prison, Vellore. (For A1)7. The Superintendent, Central Prison, Coimbatore. (ForA2)8. The Public Prosecutor, High Court, Madras-104.9. The Section Officer, Criminal Section, High Court, Madras-104.10. The Director General of of PoliceMylapore, Madras-411. The District Collector,Salem.1 cc to Mr.V. Sethuraman, Sr. 13775CRL.A.No.1048 of 2007MRD (CO)kk 24/4