Tamilarasi @ Sivagami v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.1.2008CORAM:THE HON'BLE MR. JUSTICE D. MURUGESANANDTHE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAHCRL.A.NO.213 OF 2007Tamilarasi @ Sivagami...Appellant/Accusedvs.State rep. ByInspector of Police,Selaiyur Police Station....Respondent/ComplainantAppeal filed under Section 374(2) Cr.P.C. against the judgmentdated 13.9.2006 passed in S.C.No.559 of 2005 by the learnedPrincipal Sessions Judge, Chengelput.For Appellant:Ms. RevathiFor Respondent:Mr. P. KumaresanAddl. Public Prosecutor J U D G M E N TV. PERIYA KARUPPIAH, J.This appeal is directed against the judgment of conviction andsentence dated 13.9.2006 passed against the accused in S.C.No.559 of2005 on the file of the Principal Sessions Judge, Chengalpattu.2.The charge against the accused Tamilarasi @ Sivagami isthat she being the mother of two female children viz., Sonali agedabout five years and Menaha aged about four years, unable tomaintain her children, got vexed in her life, after her husband haddeserted her and two children, decided to cause the death of herchildren and in furtherance of the same, with intent to commitmurder of the children, on 28.4.2005 at about 5.00 p.m., threw hertwo children into the well belonging to one Egambaram situated inhis field at Kamaraj Nagar, knowingly that they would drown in thewell as a result of which the two children died of asphyxia andthereby committed the offence punishable under Section 302 I.P.C.(two counts). https://hcservices.ecourts.gov.in/hcservices/

3.Since the above charge was denied by the accused, theprosecution was burdened with the duty of proving its case. To provethe case of prosecution, P.Ws.1 to 11 were examined and Exs.P.1 toP.12 were marked.4.The case of the prosecution as culled out from theevidence and the records is as follows:(a)The accused, who is a mother of two female children wasdeserted by her husband. She found it very difficult to bring up hertwo children, without financial and moral support from herrelatives. Therefore, she left her village with her two children andcame over to Chennai.(b)On the recommendation of Anna Nagar All Women Police, shegot asylum in Kalaiselvi Karunalayam. There the accused was givenemployment and her children were sent to Palvadi School. The accusedwas also given stipend while she stayed in the orphanage and thesame was deposited in her name in TNSC Bank.(c)Since the children were admitted in the residential schooland the accused could not be allowed to stay in the said Karunalayampermanently, P.W.4, Mrs. J. Arul Thangam, sent the accused to one ofits branch home at Tambaram. But the accused refused to stay thereand therefore, she was sent to Malleswari Illam for Aged. There shestayed for some time. Since the accused did not like to stay in theHome, P.W.2, Tmt. Chandra, who was supplying milk to the Home wasrequested by PW.6, Vasuki, the Warden of the Home to take theaccused and provide her with household work. (d)Accordingly, P.W.2, took the accused to a house for doinghousehold work. When P.W.4 visited the accused at P.W.2's house,the accused told her that she was living happily with her earnings.But the accused did not continue the work and also refused to go toHome. Thereafter she brought her children and was living in apathway near P.W.2's house. While so, she took her children with herand did not return thereafter.(e)On 28.4.2005, the accused came to P.W.1, the VillageAdministrative Officer at 5.00 p.m. and told him that she threw hertwo children in to the well as she could not maintain them.Immediately, P.W.1 and his assistant went to the field of Egambaram-P.W.3 and found the dead bodies of the two children floating in thewell. Then P.W.1 took the accused to Selaiyur Police Station andgave Ex.P1-complaint which was registered by P.W.11, the Inspectorof Police, Selaiyur Police Station in Cr.No.276 of 2005 underSection 302 I.P.C. (two counts) and the printed F.I.R. is Ex.P.9,which was sent to the Court and to higher officials. https://hcservices.ecourts.gov.in/hcservices/ (f)P.W.11 who took up the investigation, examined theaccused, arrested her and took her to the place of occurrence at7.30 p.m, where he saw the dead bodies of two female childrenfloating in the well. He arranged to take the dead bodies out of thewell with the help of villagers. He prepared observation mahazar-Ex.P.2 and rough sketch Ex.P.10 in the presence of P.W.8 and oneJanakiraman. Thereafter, he sent the bodies to Royapettah Govt.Hospital to place them in the mortuary. He examined P.Ws.1 to 3,P.W.8 and other witnesses and recorded their statements. Since itwas night time, he kept the accused in custody under the control ofone lady Sub Inspector of Police.(g)On 29.4.2005, since the accused was short of hearing,assistance was sought from Kasturi Bai Nagar Deaf and Dumb School,Tambaram, to record the statement of the accused. Accordingly,P.W.7, Lakshmi and one Kalaivani were appointed for the said purposeand with their assistance, the statement of the accused was recordedin the presence of P.W.10, the Village Administrative Officer,Tambaram. Thereafter, P.W.11 sent the accused for remand. On thesame day, he examined P.Ws.4 and 6 and recorded their statements. (h)On 30.4.2005, he went to Royapettah Government Hospitaland held inquest on the bodies of the two children in the presenceof panchayatars and the father of the accused-P.W.5. The inquestreports are Exs.P.11 and P.12. Then he sent the bodies forpostmortem with a requisition.(i)On receipt of the requisition, P.W.9, DoctorV.Sathyamurthy attached to Government General Hospital, conductedautopsy on the bodies of the deceased children Sonali and Menaha,found no external injuries and opined that the deceased childrencould have died of asphyxia due to drowning and preserved theviscera for chemical analysis. He issued post certificates Exs.P.3and P.4 respectively. (j)Viscera Report relating to the respective deceasedchildren are marked as Exs.P.5 & P.6 and the Biology Report andSerology Report are marked as Exs.P7 & P8.(k)Since the accused was in custody, the bodies of thechildren were handed over to P.W.5, their grandfather. P.W.11examined the doctor who conducted autopsy and some other witnessesalso. Thus, on completion of his investigation, he laid the chargesheet against the accused for the above mentioned charge.5.When the accused was questioned under Section 313 Cr.P.C.,explaining the incriminating evidence available against her, shedenied the said evidence and pleaded innocent. But the accused in https://hcservices.ecourts.gov.in/hcservices/ her written statement has submitted that the Warden of the Home atSelaiyur had illicit intimacy with P.W.1, the Village AdministrativeOfficer, which was witnessed by her directly and the other witnessesP.W.2, and her daughter Revathi and one Sudhakar had also illicitintimacy which was known to the accused. On coming to know this,all those witnesses threatened her that they would kill her and herchildren. On the assurance given by her that she would not discloseto any one, they left her. But the said Revathi and Sudhakar hadtaken the children and had thrown them into the well. On seeing thesame, she raised hue and cry. But nobody came to her rescue.Thereafter, the said Sudhakar pulled her to a distance. But theaccused escaped from his clutches, ran towards the police station,but on the way, she got fainted and after regaining at 6.00 p.m.,she went to the police at 7.00 p.m. and lodged a complaint, whichwas refused to be registered. Thereafter P.W.1 was called and somemedicine was poured into her mouth, due to which she becameunconscious and on regaining conscious, she found herself in theVellore Prison. The accused did not examine any witnesses nor markedany documents to defend her case.6.The learned Principal Sessions Judge, after evaluating theoral and documentary evidence, based her reliance solely on theextra judicial confession given by the accused to P.W.1 and came tothe conclusion that the prosecution has proved the guilt of theaccused beyond all reasonable doubt and found the accused guilty ofkilling her two children out of desperateness. Thus holding, sheconvicted the accused under Section 302 I.P.C. and sentenced her toundergo life imprisonment (two counts). Both the sentences wereordered to run concurrently. Hence this appeal by theaccused/appellant. 7.Heard the learned counsel for the appellant, Ms. Revathiand the learned Additional Public Prosecutor, Mr. P. Kumaresanappearing for the State.8.The learned counsel appearing for the appellant wouldsubmit in her arguments that the accused being the mother of thedeceased children was affectionate towards them and was lookingafter them even two years after her husband deserted her. Further,she was living happily with her children and was earning by doinghouse hold work, which was spoken to by P.W.4, the Warden of theHome and therefore, she could not have murdered her children.According to the accused, as per her statement before the Court, itwas one Revathi, daughter of P.W.2 and one Sudhakar took her twochildren and threw them into the well, as the accused had noticedtheir illicit intimacy. The said Sudhakar was said to have draggedthe accused to his place. But, however, she managed to escape from https://hcservices.ecourts.gov.in/hcservices/ his clutches and went to the police station. But on the way, she gotfainted and only on regaining conscious, she went to Selaiyur PoliceStation at 7.00 p.m. and gave complaint to the police alleging thatRevathi and Sudhakar had murdered her children, which was refused tobe taken on file. But P.W.1 was called to the Police Station. P.W.1came with some other persons to the police station lodged a falsecomplaint against the accused, which case was registered by thepolice. Thereafter, the police had beaten the accused andadministered her with some drugs. When she woke up, she foundherself in the Vellore Prison for Women. She would further submitthat the lower Court had come to a conclusion of convicting theaccused solely on the basis of the alleged extra judicial confessiongiven by the accused to P.W.1, which was not corroborated by anyother evidence and therefore, the conviction and sentence passed onthe basis of the extra judicial confession will not stand before lawand it has to be set aside. With the above pleadings, the learnedcounsel prayed that the accused is an innocent and she did notcommit the offence as put forth by the prosecution and therefore,she has to be acquitted. 9.The learned Additional Public Prosecutor Mr. P.Kumaresanwould submit in his argument that the evidence of P.W.1, the VillageAdministrative Officer to whom the accused had given extra judicialconfession had given cogent evidence and the case was registered onhis complaint in the presence of the accused by the respondentpolice. The bodies of the deceased children were recovered from thewell only on the identification of the accused and therefore, theevidence showing the accused identifying her children's dead bodiesin the well would support the evidence of the Village AdministrativeOfficer, P.W.1 and therefore, the lower Court has correctly come tothe conclusion of convicting and sentencing the accused on twocounts for the commission of murder of her own children. He wouldfurther submit in his argument that the law is well settled thatconviction could be based solely upon extra judicial confessionwithout corroboration. He would also cite an authority reported inAIR 1975 SC 1320 (Maghar Singh v. State of Punjab) in support ofhis contention. Therefore, he had thrust in his argument that theevidence of P.W.1, which was supported by other circumstantialevidence could be relied upon well and the conviction and sentencepassed by the lower Court be confirmed and the appeal be dismissed.10.We have given our anxious thought and consideration to thearguments advanced on either side and perused the oral anddocumentary evidence available on record. 11.The case of the prosecution is that on 28.4.2005 at about3.00 p.m., the accused having been frustrated in her life because of https://hcservices.ecourts.gov.in/hcservices/ the desertion of her husband and unable to bring up her two femalechildren, had thrown her two children viz., Sonali and Menaha aged 5and 4 years respectively into the well belonging to Egambaram-P.W.3and thereby she had committed the murder of her two children. 12.As per the evidence of P.W.1, the VAO, MadampakkamVillage, the accused had approached him on 28.4.2005 at 5.00 pm andhad confessed that she had thrown her two children into the wellbecause of the desertion of her husband and due to the poverty shesuffered after her husband had left her with two female children twoyears ago. PW.1 after ascertaining the above fact by visiting thescene of occurrence, went to the police station immediately alongwith the accused and preferred a complaint – Ex.P.1. 13.Apart from P.W.1, the prosecution had also examined oneChandra, P.W.2 who would speak to the effect that the Warden of theMalleswari Home for Aged viz., Tmt. Vasuki-P.W.6 had asked her totake the accused for doing household works in any one of the housesand accordingly, she had taken the accused to do household work in ahouse and in that said house, the accused had worked only for fourdays and did not continue there. The accused also refused to go backto the said Home. But, she brought her two children from theresidential school, where they were admitted by the Home and wasstaying in a pathway near her house. After 10 days she had takenaway her children and did not return thereafter. 14.The Warden of the said Malleswari Home for Aged wasexamined as P.W.6. She has said in her evidence that the accused wasreferred to Malleswari Home by the Warden (P.W.4) of KalaiselviKarunalaya, Mugappair where the accused got asylum initially andshe was asked to look after the accused at her Home and to providesome work for her. Accordingly, the accused had also gone withP.W.2, who managed to get a job for the accused. 15.Mrs. Arul Thangam, the Warden of Kalaiselvi Karunalaya,who was examined as P.W.4 would state in her evidence that theaccused and her two children Sonali and Menaha were brought by twopolice women from All Women Police Station, Anna Nagar and theyasked her to give shelter for the accused and her two children forsome time. Accordingly, she had given accommodation to the accusedand her two children temporarily in Kalaiselvi Karunalayam atMugappair, where the accused was given caretaker job and herchildren were sent to education in Palwadi School and an account wasalso opened in the name of the accused in TNSC Bank for the purposeof depositing stipend payable to the accused. Thereafter, since thetwo children were admitted in Pre K.G. and L.K.G. Classes in aresidential school at Tambaram on 14.10.2004, the accused was also https://hcservices.ecourts.gov.in/hcservices/ asked to stay at Tambaram Service Centre. But the accused refused tostay there. Therefore, P.W.4 asked P.W.6 to give accommodation tothe accused in Malleswari Home for Aged, where the accused was alsogiven accommodation. When P.W.4 visited the Home managed by P.W.6on some other work, she had also visited the accused, enquired herand satisfied with the position of the accused, as the accused hadexpressed that she was living happily with her earnings. 16.None of the above witnesses have witnessed the incident.But they all, except P.W.1, came to know about the occurrence onlyon the information furnished or on seeing the news in thenewspapers.17.On a careful perusal of the evidence adduced by theprosecution witnesses, we could see that the accused was said tohave been arrested on 28.4.2005 itself when P.W.1 had taken her tothe police station for giving complaint of murdering her twochildren. It is also the evidence of the prosecution that theaccused was present at the time of securing the bodies of thechildren from the well with the help of the light and the villagersand the observation mahazar was also prepared in the presence of thewitnesses. The investigating officer, P.W.11 would also speak in hisevidence to the effect that the accused was kept in the lock upduring the said night under the care and custody of one Woman SubInspector of Police, Varalakshmi and he had commenced theinvestigation on 29.4.2005 by recording the confession given by theaccused with the help of the teachers who were summoned from a Deafand Dumb School, Kasturibai Nagar, Tambaram. Thereafter, theaccused was taken before the Magistrate and was remanded to judicialcustody on that day itself. 18.The accused, in her statement submitted while answeringthe questionnaire under Section 313 Cr.P.C., had categoricallymentioned that she was an innocent and the children were taken awayfrom her custody by one Revathi, daughter of P.W.2 and one Sudhakarand they threw her children into the well. But a case has beenregistered against her, despite she had given complaint against thesaid Revathi and Sudhakar. She would also state that she was beatenby the police and was administered with some drugs, which made herunconscious and when she regained conscious, she found herself inthe Women Cell of Vellore Jail. 19.Under the above facts and circumstances of the case, wehave to see what is the answer or evidence given by the prosecutionto clear the suspicion raised by the accused. The investigatingofficer had spoken to the effect that he had recorded the statement https://hcservices.ecourts.gov.in/hcservices/ of the said Revathi during the course of the investigation. Butstrangely, she was not examined as one of the prosecution witnessesnor was any explanation given for her non examination. Apart fromthat, it is the case of the prosecution that the accused was kept inlock-up under the care and custody of one Woman Sub Inspector,Varalakshmi on 28.4.2005 night, before continuing the investigationon 29.4.2005. The said woman Sub Inspector was also not examined byP.W.11 during investigation nor was she examined as a prosecutionwitness before the trial Court. Thus, we could see that there issome laxity on the part of the prosecution to prove its own case. 20.There is no doubt that two female children of the accusedviz., Sonali and Menaha died due to the drowning in the well whichbelongs to P.W.3 and the bodies were recovered on that day itselfwith the help of the villagers and others. The post mortem of thebodies of the children of the accused was done by P.W.9 and the postmortem certificates - Exs.P.3 and P.4 would go to show that thosetwo children died of asphyxia due to drowning in the well.Therefore, the cause of death as per the medical evidence wasasphyxia due to drowning in the well, which could be possible onlyby throwing the children into the well either by the accused or bysome other persons or by the children themselves falling into thewell. According to the prosecution case, the children were throwninto the well by the accused. Therefore, now the point forconsideration is whether the prosecution has proved that the accusedhad committed the murder of her two children by throwing them intothe well due to the poverty suffered by her. 21.The evidence of P.W.4, Arul Thangam and P.W.2 Chandrawould go to show that the accused was employed in a neighbouringhouse of P.W.2 where she was earning for her children and herchildren were also accommodated in a residential School at Tambaramand she was happy when P.W.4 visited her. It is the evidence ofP.W.2 that the accused brought her two children and was living withthem in an enclosed pathway near her house at that time. Therefore,we could see that there could not be any poverty for the accused totake her to the decision of ending their life. The evidence of P.W.4would go to show that the accused was asked to stay at ChromepetHome and since she was not willing to stay there, she was asked togo to Malleswari Home for Aged at Tamabaram and she was alsoaccommodated there and from there, she was taken by P.W.2 for doinghouse hold work in a neighbouring house. Therefore, we could seethat the accused was not put in a permanent employment as assured byP.W.4 at Mogappair. But however, she was having employment and wasleading her life. In these circumstances only, the allegedcommission of murder of two children was said to have taken place. https://hcservices.ecourts.gov.in/hcservices/

22.The prosecution rests its case solely based upon theevidence of P.W.1, the Village Administrative Officer of MadambakkamVillage to whom the accused is said to have given confession abouther commission of murder of her two children. P.W.1 would alsoadmit to the effect that the accused was short of hearing and thathe had ascertained the facts as understood from her confession byquestioning her in a loud voice. The investigating officer had alsospoken to the effect that the accused was short of hearing andtherefore, he had to engage the services of P.W.7, a teacher fromthe School for Deaf and Dumb Kasturi Bai Nagar, Tambaram forrecording her statement. P.W.7 would also speak to the effect thatshe had translated the questions and answers posed to the accused atthe time of recording her confession and some times she could alsohear and speak well. The said confession cold not be produced as itdoes not attract Section 27 of the Indian Evidence Act. Therefore,the evidence adduced by P.W.7 and other evidence of the prosecutionregarding the recording of confession of the accused lost itsevidentiary value and will not support the prosecution case. 23.Now we have to see whether the sole testimony of P.W.1, towhom the extra judicial confession was made by the accused, could berelied upon and the conviction and sentence of the lower Courtsolely based on the said extra judicial confession is proper. In thejudgment cited by the learned Additional Public Prosecutor vi., AIR1975 SC 1320 (Maghar Singh vs. State of Punjab), the Apex Court hadcategorically mentioned that if the extra judicial confession givenby the accused is established, then there is no necessity ofcorroboration and the Court can believe on the sole extra judicialconfession to come to a conclusion of conviction. On the other hand,it is brought to the notice of this Court by the learned counsel forthe appellant, that the Hon'ble Supreme Court of India had cautionedthe lower Courts about the reliance made on extra judicialconfession as it is a weakest proof, which requires support fromother evidence. The said judgment of the Supreme Court of India wasreported in 1998 SCC Crl. 1421 (Kavitha vs. State of Tamil Nadu),which would run as follows:"There is no doubt that convictions can be based onextra-judicial confession but it is well settledthat in the very nature of things, it is a weakpiece of evidence. It is to be proved just like anyother fact and the value thereof depends upon theveracity of the witness to whom it is made. It maynot be necessary that the actual words used by theaccused must be given by the witness but it is forthe court to decide on the acceptability of theevidence having regard to the credibility of thewitnesses." https://hcservices.ecourts.gov.in/hcservices/

24.On a careful perusal of the aforesaid judgment of ourHon'ble Supreme Court, now we have to test the acceptability andcredibility of the extra judicial confession said to have been givenby the accused to P.W.1 in order to confirm the conviction andsentence passed by the lower Court based on the said extra judicialconfession. In the statement given by the accused while she wasexamined under Section 313 Cr.P.C. questionnaire, it is alleged thatP.W.1, P.W.2, one Revathi and Sudhakar, had committed the murder ofher children and the accused was innocent and she was administeredwith drugs and she did not even know about her remand. The accusedhad also suggested the case during the cross examination of P.W.1and other witnesses including the investigating officer. But theprosecution has not examined the said Revathi and also Varalakshmi,S.I. of Police who was said to have guarded the accused during thenight of 28.5.2005. When we called for the order of the remand ofthe Magistrate for perusal, we could see that it has been typed andthe learned Magistrate had signed in the typed order while remandingthe accused. It was not recorded by the Magistrate that there was nocomplaint by the accused against the police. Her condition was alsonot recorded by the learned Magistrate at the time of remand. Thenon examination of important witnesses has also given rise to asuspicion in the minds of the Court with regard to the genuinenessof the prosecution case. 24.Therefore, we are of the considered view that it is alsonot safe to rely upon the alleged confession said to have been givenby the accused to P.W.1 orally in order to base a conviction againstthe accused. The evidence of P.W.1 would show that the accused hadgiven confession orally; but he being the Village AdministrativeOfficer, failed to reduce the same into writing. Whereas the accusedwas taken by P.W.1 to the police station and there he gave complaintagainst the accused. The immediate remand of the accused was notdone by the investigating officer, but she was kept in the lockupunder the care and custody of one woman S.I. Varalakshmi throughoutthe night. These circumstances would go a long way to show that theevidence of P.W.1 is not reliable and trustworthy. Therefore, thealleged confession said to have been given by the accused to P.W.1cannot be construed as an extra judicial confession which couldsolely be relied upon to hold the conviction as per the guidelinesof the Hon'ble Supreme Court in its judgment reported in AIR 1975 SC1320 cited above. Therefore, we are of the considered view, that theprosecution has miserably failed to prove the charges framed againstthe accused. But the lower Court had convicted the accused forcommission of murder of her two children and sentenced her toundergo life imprisonment on two counts. Therefore, it has becomenecessary for us to set aside the judgment of conviction andsentence passed by the lower Court against the accused. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the appeal is allowed setting aside the convictionand sentence passed against the accused in S.C.No.559 of 2005 dated13.9.2006 on the file of the Principal Sessions Judge, Chengalpetthereby acquitting the appellant from the charges framed and theappellant is directed to be set at liberty forthwith, if she is notrequired in any other case. kvSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Principal Sessions Judge,Chingleput.2.The Special Prison for Women,Vellore.3.The Public Prosecutor,High Court, Madras.4.The Inspector of Police,Selaiyur Police Station, Selaiyur.5.The District Collector, Chingleput.6.The Director General of Police,Chennai.Asm (co)dv/30.1. JUDGMENT IN CRL.A.213 OF 2007