Uma v. Inspector of Police,R10,MGR Police Station,Chennai – 600 083

Bail SlipThe Appellant/Accused Viz Uma was directed to be released on bail asper order of this Court dated 16.4.08 and made in Crl.M.P.No.1/08 inCrl.A.No.234/08 on the file of this Court.(And Subsequently the bailorder was canceled by order dt 22.6.2009 and made in MP No.1/2008 incrl A No.234/2008. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL No.234 of 2008Uma .. Appellant/AccusedVs.Inspector of Police,R10,MGR Police Station,Chennai – 600 083(Crime No.1026/2007) .. Respondent/Complainant This criminal appeal has been preferred under Section 374Cr.P.C. against the judgment of the learned Principal Sessions Judge,Chennai made in S.C.No.221 of 2007 dated 31.1.2008. For Appellant : Mr.V.KadirvelFor Respondent : Mr.A.Saravanan,G.A(Crl.side)JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Chennai made in S.C.No.221 of 2007 whereby the soleaccused/appellant stood charged, tried and found guilty of murder andawarded life imprisonment along with fine of Rs.500/- in default toundergo three months simple imprisonment.2. The short facts necessary for the disposal of this appeal canbe stated as follows. https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.2 is the husband of the accused. The accused along withher husband P.W.2, her mother-in-law, her daughter Delhi Rani agedthree months were residing in the second floor at Door No.40/90Bharathy Nagar Main Road, Nesapakkam, Chennai-78. P.Ws.1 and 3 werethe owners of the said house. On 19.4.2007 at about 2.00 a.m. whenP.Ws. 1 and 3 were sleeping, the accused and her mother-in-lawknocked the door. P.Ws.1 and 3 opened the door and they were informedthat the child of the accused Delhi Rani was found near the washingstone on the ground floor. P.Ws. 1 and 3 along with the accused andher mother-in-law rushed near the washing stone and found the childwith injuries. Immediately, they took the child to the private clinicand P.W.6 doctor examined the child and advised them to take thechild to the Government Hospital for taking C.T. Scan. On thecontrary, they brought the child to home and the child died at4. a.m. on the same day. (b) The next morning, when P.W.1 was cleaning the verandah, shenoticed pieces of black colour bangle M.O.1 and also blood stains.She entertained suspicion. Immediately, she went to MGR Nagar PoliceStation and gave a complaint Ex.P1 to P.W.11 Inspector of Police. Onthe strength of Ex.P1 complaint, a case came to be registered inCrime No.1026/2007 under section 174 Cr.P.C. and the printed F.I.REx.P8 was despatched to Court.olice took up investigation, proceeded to the spot, made aninspection, prepared the observation mahazar Ex.P2 and drew a roughsketch Ex.P9. Then,he called P.W.10 photographer and took photographsof the place of occurrence and the dead body of the child which weremarked as M.O.7 series photos and M.O.8 negatives. He also examinedthe witnesses and recorded their statements. He conducted inquest onthe dead body of the child in the presence of witnesses andpanchayatdars and prepared Ex.P10 inquest report thereafter, thedead body was subjected to post mortem. (d) P.W.9 doctor attached to Government Royapettah Hospital,conducted post mortem on the dead body of the child and gave hiscategoric opinion in Ex.P.7 post mortem certificate that the childwould appear to have died of head injuries.(e) On 21.4.2007, the investigating officer examined thewitnesses and the accused. Since the investigation revealed that theaccused had committed the offence, he altered the section to 302 from174 Cr.P.C. and sent Ex.P11 express report to the Court concerned.The accused was arrested on the same day. In the presence of P.W.5Revenue Inspector, the accused gave confessional statement and theadmissible part is marked as Ex.P4, pursuant to which, she producedM.O.2 Yellow colour shirt and M.O.3 rose and violet colour bloodstained kerchief and they were recovered under a cover of mahazarEx.P5. Thereafter, the accused was sent for judicial remand. Oncompletion of the investigation, the Investigating Officer filed afinal report. https://hcservices.ecourts.gov.in/hcservices/ (f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution marched 11 witnesses and relied on 11 exhibits and 8material object. On completion of the evidence on the side of theprosecution, the accused was questioned under section 313 Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witness and she denied them as false. No defence witnesswas examined and no document was marked. The trial court heard thearguments advanced on either side and took a view that theprosecution has proved its case beyond reasonable doubt and found theaccused guilty of murder and awarded life imprisonment. Hence, thisappeal at the instance of the appellant.3. Advancing the argument on behalf of the appellant, learnedcounsel inter alia would submit that according to the prosecution,the occurrence had taken place on 19.4.2007 during night hours andthe inmates available were the accused, her husband and her mother-in- law. According to the prosecution, the accused and her mother-in-law knocked the door of the house of P.Ws. 1 and 3 and informed thatthe child was found near the washing stone on the ground floor. Then,they found the child with injuries and took the child to a privateclinic. P.W.6 doctor gave initial treatment. Ex.P1 report was givenby P.W.1 to P.W.11 Inspector of Police and on the strength of which acase came to be registered in Crime No.1026/2007 under section 174Cr.P.C. A perusal of Ex.P.1 report clearly indicate that when theaccused and her mother-in-law came to the house of P.Ws.1 and 3, theyinformed that the child sustained injuries and they took the childto a private clinic. No where it is averred that the child was foundnear the washing stone on the ground and sustained injuries. Theseare all new developments made and it was really a new case beforethe trial Court. 4. Added further learned counsel, in the instant case, onlythree inmates along with the child were present at the time ofoccurrence. P.W.2 was also present at that time and he was alsoexamined but P.W.2 has turned hostile. The mother-in-law of theaccused was present all along with the accused and she is thecompetent person to speak to the fact but she was not examined.According to P.W.1 when she was sleeping with her husband-P.W.3 , theaccused and her mother-in-law knocked the door and stated thatsomebody has thrown the child to the ground floor. At the time ofoccurrence, the the accused along with P.W.2 her husband and hermother- in- law were available in the house but who has actuallythrown the child among the three, is not known at all. Under suchcircumstances, even assuming it is true that the child was thrown,the prosecution could not fix the culprit. 5. Added further learned counsel, in the instant case, theprosecution placed before the trial Court another piece of evidence,the so called confession statement given by the accused. Even as perthe evidence, the accused was actually available all along. Theprosecution has come forward with a false story as if the arrest was https://hcservices.ecourts.gov.in/hcservices/ made on 21.4.2007 and the accused was sent to the Revenue Inspectorwho recorded the confessional statement pursuant to which thematerial objects were recovered and among the material objects, M.O.3kerchief was actually found with blood stains. If to be so, the saidkerchief should have been subjected to chemical analysis but it wasnot done and no explanation was given by the prosecution. All wouldgo to show that the prosecution miserably failed from any angle butthe trial Court has taken an erroneous view and found the accusedguilty. Under such circumstances, the accused/appellant is entitledfor acquittal in the hands of this Court.6. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.7. It is not in controversy that the child of theaccused/appellant was actually taken to a private hospital and P.W.6doctor, after examining the child advised them to go to theGovernment Hospital but the child was brought home. Following theinquest made by P.W.11, the dead body was subjected to post mortem.P.W.9 doctor conducted autopsy and gave his categoric opinion aswitness before the Court and also through the contents of postmortem certificate that the child died out of head injuries. Thus, noimpediment is felt by this Court to record that the child died out ofhead injuries.8. In order to prove the charge levelled against the accusedthat it was the accused who threw the child from the second floor tothe ground floor and caused the death of the child, the prosecutionrelied on the circumstantial evidence since it had no direct evidenceto offer. Even as per the prosecution case, the occurrence hastaken place at 2.00 a.m. on 19.4.2007 and three inmates wereavailable in the house viz., the accused, her husband and hermother-in- law. Out of these three persons, it was the accusedagainst whom charge was levelled against but the mother-in-law of theaccused though present all along was not examined as a witness.P.W.2 has turned hostile. Now, at this juncture, it remains to bepointed out that duty is cast upon the prosecution to bring the primefact that it was the accused who threw the child from the secondfloor to the ground floor due to which the child sustainedinjuries and died. In the instant case, the non-examination ofmother-in-law who was present all along in the house, in theconsidered opinion of the Court, is fatal to the prosecution casesince the only witness in that regard P.W.2, husband of the accused,has turned hostile. The prosecution has no explanation to offer inthis regard. 9. On 20.4.2007, P.W.1 has gone to the police station and hasgiven Ex.P1, complaint at 10.00 a.m. On perusal of Ex.P1 report, itwould clearly indicate that the accused was staying all along withher mother-in-law and she also came along with the accused and https://hcservices.ecourts.gov.in/hcservices/ knocked the door of the house of P.W.1 and P.W.3 at 2.00 a.m. whenthey were sleeping and when they opened the door, they stated thatthe accused child sustained injuries but nowhere it is stated inEx.P.1 report that the body of the child was found in the groundfloor and thereafter it was taken. She has stated in the evidencethat she was informed by the accused and her mother in law thatsomebody has thrown the child from upstairs to the ground floor.Thus, it would be quite clear that these versions are newly developedat the time of evidence and no credence could be attached to thisstatement which thoroughly deviates from the statement made in Ex.P1report. 10. Further, the prosecution much relied on the recovery of thematerial objects, pursuant to the confession statement alleged tohave been given by the accused to P.W.5 Revenue Inspector. Onanalysis of that part of the evidence, the Court has to out rightreject the same. Even as per the evidence, the accused person wasall along present in the house but the arrest was shown only on21.4.2007. She was also sent to the Revenue Inspector-PW.5 along withthe officials to record the confession statement, then, theconfession statement was recorded by P.W.5 and the admissible partwas marked as Ex.P4. Thus, it looks unnatural. Apart from that, oneof the material objects recovered was the blood stained Kerchief butthe same was not subjected to chemical analysis though P.W.1 claimsthat she found the blood stains in the ground floor. The bloodstains were also not recovered by the investigating officer which, inthe circumstances of the case, is irregular and the non-recovery ofthe same, cannot be taken as a minor defects. 11. It is needless to say that in a given case like this, theCourt must look that the circumstances must be completed without asnap pointing to the hypothesis that except the accused no one elsecould have committed the offence. If this test is applied, the courtis of the opinion that the prosecution has miserably failed to provethe case. Even assuming that the child was actually thrown fromupstairs to the ground and death was caused while three in mateswere there, duty is cast upon the prosecution to find the realculprit but the prosecution is unable to fix the culprit out of thethree inmates as to who actually committed such an act. Under thesecircumstances, accepting the evidence of the prosecution andsustaining the conviction, would be highly unsafe in the eye of law.The court is of the considered opinion that the prosecution has notproved the case beyond reasonable doubt and hence, the benefit ofdoubt should be given to the appellant and the appellant is to beacquitted. 12. It is report that bail granted to the appellant/accused on16.4.2008 was cancelled on 22.6.2009. 13. In the result, the judgement of conviction and sentenceimposed on the appellant by the learned Principal Sessions Judge,Chennai in S.C.No.221 of 2007 is set aside and she is acquitted of https://hcservices.ecourts.gov.in/hcservices/ the charges levelled against her. The appellant is directed to bereleased forthwith unless her presence is required in connection withany other case. The bail bonds if any executed by the appellantshall stand terminated and the fine amounts if any paid by her isordered to be refunded to her.vsiSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Sessions Judge, Chennai.2.The Metropolitan Magistrate No.XXIII Saidapet, Chennai.3.-Do- Through the Chief Metropolitan Magistrate, Egmore, Chennai.4. The Superintendent, Central Prison, Puzhal, Chennai.5. The Inspector of Police, R.10, M.G.R. Nagar Police Station, Chennai - 83. 6. The District Collector, Chennai.7.The Director Central of Police, Chennai.8.The public Prosecutor, high Court, Madras.9.The Section Officer, Crl. Section, High Court, Chennai 104.+ 1 cc to Mr. M.Devaraj, Advocate (CC SR.28957) CRL.A.No.234 of 2008GV(CO)EU 21.7.2009.