Criminal Appeal No. 944 of 2007 · Madras High Court

BAIL SLIP1.The Appellant / Accused viz., Murugesan, 30 years,S/o.Chinnasamy, (Accused-1) was directed to the released on bail asper order of this court dated 12.11.2007 and made in Crl.MP.No.1/07in Crl.A.No.944/07 on the file of this Court. 2. The Appellant / Accused viz., Chinnammal, aged 60 years,W/o.Chinnasamy (Accused-2) was directed to be released on bail as perorder of this Court dated 11.03.2008 and made in Crl.MP.No.1/08 in Crl.A.No.944/07 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.944 OF 20071.Murugesan2.Chinnammal .. Appellants/Accused 1 % 2Vs.State represented by Inspector of Police, Mathiganpalayam Police Station, Dharmapuri District .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the conviction and sentence imposed in S.C.No.95 of2007 dated 20.9.2007 on the file of the Additional Sessions Judge, Dharmapuri.

For Appellants : Mr.R.Sankara SubbuFor Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional SessionsJudge, Dharmapuri in S.C.No.95 of 2007 whereby the firstappellant/first accused was tried, stood charged and found guiltyunder Section 302 IPC read with 34 IPC and sentencing him to undergolife imprisonment and to pay a fine of Rs.1000/- in default to https://hcservices.ecourts.gov.in/hcservices/ undergo one year RI and he was also found guilty under Section 201IPC and sentencing him to undergo 3 years R.I and to pay a fine ofRs.1000/- in default to undergo three months R.I. and the secondaccused found guilty under Section 302 IPC and sentencing her toundergo life imprisonment and to pay a fine of Rs.1000/- in defaultto undergo one year RI and and she was also found guilty under Section 201 read with 109 IPC and sentencing her to undergo 3 yearsR.I and to pay a fine of Rs.1000/- in default to undergo three monthsR.I. with the further direction to run the sentences concurrently byeach accused.

2. The short facts necessary for the disposal of thisappeal can be stated as follows: a)P.W.1 along with his wife who was examined as DW1 andmother A2 was living at Lalakottai Krishnapuram Village within thejurisdiction of the respondent police. While they had three femalechildren, the wife of A1 gave birth to fourth child which was alsohappened to be a female child and hence A1 and A2 decided to do awaywith the child and accordingly they administered poison and as aresult the child died. In order to screen the offence, they buriedthe dead body in the land in S.No.437/16. Suspicion was entertainedby the neighbours. b)PW1, the Villge Administrative Officer of the said placewas informed by his assistant about the suspicion entertained by thevillagers. PW1 informed to the Tahsildar and thereafter he gave acomplaint to PW10, the Sub Inspector of Police, Mathinkonpalayam whichis marked as Ex.P.1 and on the strength of which, a case came to beregistered in Crime No.229 of 2004 under Section 174 Cr.P.C. ThePrinted FIR Ex.P.13 was despatched to the Court and copies wereactually served upon the Tahsildar and also PW11, the Inspector of Police of the Circle. c)PW11, on receipt of the FIR, proceeded to the spot andPW1 was also present in the place of occurrence.

In the presence ofthe witnesses, the body was exhumed and inquest was conducted by the Tahsildar which was marked as Ex.P4. The body of the child was sentfor postmortem. d)P.W.6, the Doctor attached to the Government Hospital, Dharmapuri, on receipt of the requisition from the Tahsildar, hasconducted post-mortem on the body of the child and has issued Ex.P.8,the post-mortem certificate, wherein he has opined that the deceasedwould appear to have died 3 to 5 days prior to autopsy due to organophosphorous insecticide poison. e) A requisition was sent by the Tahsildar to send theviscera for chemical Analysis. A requisition was sent by PW11, the Inspector of Police to the Judicial Magistrate concerned for sendingmaterial objects which is marked as Ex.P.14. Then he proceeded to thescene of occurrence and prepared Observation Mahazar Ex.P2 and drewRough Sketch Ex.P.15. The witnesses were examined and on theintimation given by the Judicial Magistrate to the Tahsildar, the Section was altered into one under Section 302 IPC and the Express https://hcservices.ecourts.gov.in/hcservices/ FIR Ex.P.16 was despatched to Court.

The accused were arrested. Thefirst accused gave a confessional statement voluntarily which ismarked as EX.P.6. Pursuant to the confession, the first accusedproduced M.O.1, a plastic containing with screw type lid containing afew drops of brown colour liquid and M.O.2 a stainless steel'paladai" of the child. It was recovered under the cover of Mahazar. Ex.P.9 is the Bone Case report, Ex.P.10 is the Viscera Report andEx.P.12 is the Chemical Analyst Report. On completion ofinvestigation, the investigator filed final report.3..The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 12 witnessesand also relied on 16 exhibits and 2 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses.

The accused flatly deniedthe same as false. On the side of defence, two witnesses wereexamined. The wife of A1 was examined as DW1 and also one doctorShyam sundar was examined as DW2 and two documents were markedthrough the defence witnesses. The trial court, after hearing thearguments advanced and scrutinizing the materials available, took theview that the prosecution has proved the case beyond reasonable doubtfound them guilty and awarded punishment as referred to above. Hencethis appeal has arisen at the instance of accused/appellants herein. 4. Advancing arguments on behalf of the appellants, thelearned counsel would submit that in the instant case, theprosecution has misrably failed to prove its case. The prosecutionhad no direct evidence to offer. The gist of the case of theprosecution was that A1 and A2 have administered poison to the child. Thus, the prosecution could not fix who has administered poison tothe child.

The dead body was exhumed after number of days. It wasactually a natural death. The dead body was sent for analysis and thereport was received only after a period of six or seven months. Thesaid report was not useful to the prosecution case. Added further, inthe instant case, DW1 was examined. she has categorically deposedthat during the relevant point of time, she went outside for takingbath and at that time, A2, her mother-in-law under a mistakenimpression that it was a Gripe water, gave it to the child and thatshe had no idea that it was a poisonous substance. To this effect, A2also gave a statement, When she was examined under 313 statement. Actually during the relevant time, A1 was not present at all. Theprosecution relied on circumstantial evidence, but the circumstantialevidence was not available and the prosecution was unable to provethe necessary circumstances pointing to the guilt of the accused.

Under such circumstances, the prosecution misrably failed to proveits case and they are entitled for acquittal in the hands of this Court. 5. The court heard the learned Additional Public Prosecutoron the above contentions and has paid its anxious consideration onthe submissions made. https://hcservices.ecourts.gov.in/hcservices/

It is not in controversy that the fourth female child wasactually buried. After the complaint, a case was registered under Section 174 Cr.P.C. as suspecious death. In the presence of thewitnesses, the body was exhumed. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem byP.W.6 Doctor who has given his categorical opinion that the deceasedwould appear to have died 3 to 5 days prior to autopsy due to organophosphorous insecticide poison. It is pertinent to point out that atany point of time, the fact that the child died due to poisonoussubstance was never disputed by the appellants before the trialCourt. The Prosecution has proved that the child died due topoisonous substance, by examining the postmortem doctor and the Chemical analyst, and also by sending the material Object M.O.1bottle which was recovered pursuant to confession given that itcontained the poisonous substance.

Learned counsel would further urge that since the secondaccused is 60 years old, leniency has got to be shown. It is not thecase where the Court should show any leniency at all. The act of theaccused can be termed as murder of the infanticide, which in theopinion of the Court, is heinous and under such circumstances thetrial court is perfectly correct in finding her guilty under Section302 IPC. But the prosecution had not brought home the guilt of thefirst accused beyound reasonable doubt. Therefore, the first accusedis entitled for acquittal. In so far as A2 is concerned, the appealhas got to be dismissed. Further, the child has also been buried inorder to screen the evidence which has come within the ambit of Section 201 of the Indian Penal Code and the punishments what isawarded by the trial court is reasonable. Hence we are of theconsidered opinion that both the punishments as rendered by the trialCourt in so far as second appellant/A2 is concerned, are to runconcurrently.

The Judicial Magistrate No-I, Dharmapuri. 6. The Chief Judicial Magistrate, Dharmapuri. 7. The Superintendent, Central Prison, Vellore. 8. The District Collector, Dharmapuri. 9. The Director General of Police, Chennai.+ 1 cc to R.Sankarasubhu, Advocate, SR.28676CRL.A.NO.944 OF 2007PKB(CO)GS/17/07/09