Bail Slip The Appellants A2 / Accused No.2 namely Chinnapaiyan was directed to release on bail as per order dated 4.12.2007 and amde in Crl.M.P.NO.1/07 in Crl.A.1048/07 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13 .4.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal No.1048 of 2007 1. Kalaiyarasi W/o.Venkatachalam 2.Chinnapaiyan S/o.Muniya Gounder .. Appellants/Accused Nos.1 and 2 -Vs- State represented by the Inspector of Police, Deevattipatti Police Station, Salem District. (Crime No.1015/2000) .. Respondent/Complainant Prayer: Appeal against the judgment of conviction and sentence imposed on the accused in S.C.No.33 of 2007, dated 13.11.2007, on the 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 Sessions Case No.33 of 2007 on the file of First Additional Sessions Judge, Salem and they have preferred the appeal challenging the conviction and sentence imposed on them in the case. For the sake of convenience, in this Judgment, the appellants will be referred to as Accused Nos.1 and 2. 2. Accused No.1-Kalaiyarasi was convicted by the learned First Additional Sessions Judge under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/-, in default, to undergo Rigorous Imprisonment for one year. Accused No.2-Chinnapaiyan was convicted for the offence under Section 201 read with 302 IPC and sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.5000/-, in default, to undergo Rigorous Imprisonment for six months. 3. To prove its case, the prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P16 and M.Os.1 and 2. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. 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 younger sister of Accused No.2-Chinnapaiyan. A1-Kalaiyarasi got married to Venkatachalam, the son of P.W.3-Parvathi and they have two female children. A1-Kalaiyarasi conceived for the third time and she was admitted for delivery at 10 am on 7.10.2000 in Government Primary Health Centre, Kaadayampatti and P.W.8- Dr.T.Rajendran attended on her and she delivered a female baby at 11.45 am and she was discharged on the same day at 6 pm and Ex.P5-Birth Register extract contains the relevant entry. P.W.7-Village Administrative Officer of Kanavaipudur, Azhakiyamanavalan received information that the third female child born to A1-Kalaiyarasi died on 10.10.2000 and the body was buried in the backyard of the house and suspecting female infanticide, https://hcservices.ecourts.gov.in/hcservices/ he passed information to P.W.4-Deputy Tahsildar Ananthakrishnan and he went to Deevattipatti Police Station at 4 pm on 12.10.2000 and gave Ex.P1-written complaint and P.W.13-Inspector Muniappan registered a case in Crime No.1015/2000 under Section 174 Cr.P.C and prepared Ex.P14-First Information Report and despatched the same to the Court. He gave Ex.P8-written requisition to Omalur Tahsildar to exhume the body and conduct inquest. P.W.9- Tahsildar M.Jegarajan went to the house of A2-Chinnapaiyan on 13.10.2000 and A2-Chinnapaiyan showed a rubbish pit behind his house and the place was dug and the body of the female child was exhumed and P.W.9-Tahsildar M.Jegarajan conducted inquest on the body by examining the witnesses and prepared Ex.P9-Inquest report. Ex.P6 is the Plan showing the place where the infant was buried and Ex.P7 is the copy of Field Map of the place. On requisition, P.W.12-Dr.Vallinayagam conducted post-mortem on the body in the place at 10.30 am on 13.10.2000 and found the following: "Appearances found at the post-mortem Early decomposed body of a female child. Externally no ante-mortem injuries present. Peeling of scalp hair present. Peeling of skin present. Internal: Plural cavity empty. Peritoneal cavity empty. Heart empty, flabby; Left hyoid bone intact. Oral cavity five (5) raw paddy grain present. Lungs intact, Trachea three (3) raw paddy grain present. Lungs: Right lung 5 (five) raw paddy grain present in major bronchi. Oozing of blood present. Left lung 4 (four) raw paddy grain present. Oozing of blood present stomach hemorrhagic spots present in the posterior wall twelve (12) raw paddy grain present in the gastro duodenal junction. Liver, spleen, kidneys pale and early decomposed. Intestines: empty; Bladder: empty; Uterus: infantile; Impression: A case of female infanticide." He expressed opinion that the deceased would appear to have died of asphyxia as a result of suffocation, 2-5 days prior to post- mortem and issued Ex.P12-Post-mortem Certificate. After the post-mortem, P.W.11-Head Constable Venkatachalam took M.O.2-White cloth found on the body and produced the same to P.W.13-Inspector Muniappan. P.W.13-Inspector Muniappan at the occurrence place prepared Ex.P2-Observation mahazar in the presence of P.W.7-V.A.O Azhakiyamanavalan 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 the infant through P.W.10-Photographer Vijayakumar. He received Ex.P9-Inquest Report and altered the case into one under Section 302 IPC and prepared Ex.P16-Express Report. He arrested A1-Kalaiyarasi and A2-Chinnapaiyan and at 6 am on 14.10.2000 near Muthanampatti Mariamman Temple and enquired A1-Kalaiyarasi in the presence of P.W.7-V.A.O Azhakiyamanavalan and another and recorded her confession statement in their presence. Ex.P3 is the admissible portion of the confession statement. A1- Kalaiyarasi took them to their house and produced M.O.1-Paddy Seeds and he seized them under Ex.P4-mahazar in the presence of same witnesses. He sent the accused for judicial remand. He examined P.W.5-Ranganathan, P.W.6-Murugesan, P.W.7-V.A.O Azhakiyamanavalan and P.W.11-Head Constable Venkatachalam on the same 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 final report against the Accused Nos.1 and 2 on 17.1.2001. 5. Both the accused were questioned under Section 313 Cr.P.C and they denied complicity. No witness was examined and no document was marked on their side. 6. The Trial Court found that the charges framed against the accused are proved and convicted and sentenced them as stated above. Challenging the conviction and sentence, Accused Nos.1 and 2 have preferred the present appeal. 7. Mr.V.Gopinath, learned Senior Counsel appearing for the appellants/Accused Nos.1 and 2, submits that the case is based upon only circumstantial evidence and the prosecution has not adduced clinching and incriminating circumstances leading to an inference that first appellant/Accused No.1-Kalaiyarasi alone administered paddy seeds to the infant resulting in death and in so far as second appellant/Accused No.2-Chinnapaiyan is concerned, at the best it can be inferred that he had known the place where the child was buried and no further inference could be drawn that an offence has been committed with regard to the death of the child and hence the conviction and sentence imposed on the appellants/Accused Nos.1 and 2 are liable to be set aside. 8. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor, submits that the infant was only in the custody of first appellant/A1-Kalaiyarasi and as per the medical testimony, the death has occurred due to administering paddy seeds and it is for the mother to explain as to how the death has occurred and there is no explanation forthcoming from 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 the second appellant/A2-Chinnapaiyan is concerned, he had caused disappearance of evidence of offence, with an intention to screen the offender viz. his daughter and the conviction and sentence imposed on them are sustainable. In support of his submission, he relies on a decision of a Division Bench of this Court 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 for the appellants/Accused Nos.1 and 2, in support of his submission, relies on the following three decisions rendered by various Division Bench of this Court. "1. Unreported decision, dated 10.12.2004, in Criminal Appeal No.419 of 1996 (KANNAMMAL Vs. STATE REP. BY THE INSPECTOR OF POLICE) 2. Unreported decision, dated 12.10.2006, in Criminal Appeal No.1303 of 2004 (SUGUNA Vs. STATE REP. BY THE INSPECTOR 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 for the third time and was admitted for delivery at 10 am on 7.10.2000 at Government Primary Health Centre, Kaadayampatti and P.W.8- Dr.Rajendran attended on her and she delivered a female baby at 11.45 am and she was discharged on the same day at 6 pm and Ex.P5 is the Birth Register extract containing the relevant entry. Accused No.1-Kalaiyarasi, in her examination under Section 313 Cr.P.C, has admitted the testimony of P.W.8-Dr.Rajendran and Ex.P5-Birth Register extract as true. The infant was exhumed by P.W.9-Tahsildar Jegarajan and Ex.P9 is the inquest report. P.W.12-Dr.Vallinayagam conducted post-mortem on the body and found raw paddy grain during internal examination of lungs and trachea and he had expressed opinion stating that the deceased would appear 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 the prosecution relies on circumstantial evidence only. The occurrence is said to have taken place in the house of A2- Chinnapaiyan while the child was in the custody of mother viz., A1-Kalaiyarasi and accused No.1 gave information in her statement leading to the recovery of M.O.1-Paddy Seeds. No doubt, it is true 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 the statement of Investigation Officer P.W.13-Inspector Muniappan, A1- Kalaiyarasi gave information in Ex.P3-admissible portion of her confession statement and took them to her house and produced M.O.1-Paddy seeds and he seized them under Ex.P4-mahazar in the presence of P.W.7-V.A.O Azhakiyamanavalan and another. Paddy seeds are already available in the house of A2-Chinnapaiyan and M.O.1-Paddy Seeds are only sample seeds and they have no connection with the crime and the above recovery does not help the prosecution case as a circumstance against the accused. 12. P.W.1-Kamala is the wife of A2-Chinnapaiyan and mother of A1-Kalaiyarasi and she was present in the house along with A1 and A2 on the occurrence day. Hence it cannot be presumed that it is only A1-Kalaiyarasi administered the paddy seeds to the infant and in order to implicate her for the commission of the offence, the prosecution is bound to adduce some more incriminating materials to connect her with the alleged crime, which is absent in the present case. 13. In the decision in ANJALA'S CASE (referred to supra), relied on by the learned Additional Public Prosecutor, the Division Bench observed that a strong circumstance against the accused was that A-2 had gone to the extent of even denying the factum of conceivement of his wife A-1 and the consequential birth of the deceased infant, only to show their involvement in the occurrence and there were other incriminating circumstances and hence conviction and sentence require no interference. In the present case, as already seen, the accused have not denied the fact 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), the mother of the infant was the first accused and the charge against her was that she administered Erukkampal poison to the child and two different Division Bench of this Court held that there were other persons available in the same house on the occurrence day and in the absence of direct evidence pointing to the fact that it was the mother who administered the poison to the infant, the mother cannot be fastened with the liability of administering poison to the infant. 15. In the decision in KALIAMMAL'S CASE (cited supra), the accused was the grandmother of the child and the Division Bench observed that even assuming that the occurrence took place inside the house, it cannot be presumed that the accused grandmother administered the poison to the child and in order to implicate the accused for the commission of the offence, the prosecution 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 to adduce the same. In the present case also, there is no direct evidence pointing to the fact that it is A1-Kalaiyarasi who administered paddy seeds to the infant. The settled principle of law is that suspicion however strong cannot take the place of proof and in the absence of incriminating material or circumstance, it is not safe to convict Accused No.1-Kalaiyarasi for the charge of female infanticide. 16. In so far as the charge against A2-Chinnapaiyan is concerned, P.W.9-Tahsildar Jegarajan has stated that he went to the house of A2-Chinnapaiyan on 13.10.2000 and accused No.2 showed the rubbish pit behind his house and that place was dug and the body of female child was exhumed. We have already concluded that the prosecution has not established the charge of murder of the infant as against A1-Kalaiyarasi. In such circumstance, it cannot be said that A2-Chinnapaiyan had known that offence has been committed in respect of the death of infant and with the intention of screening the offender he had caused the evidence of commission of offence to disappear. 17. Therefore, we hold that the prosecution has not proved the case as against both the accused beyond reasonable doubt and the conviction and sentence imposed on them by the Trial Court are liable to be set aside. 18. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants/Accused Nos.1 and 2 in Sessions Case No.33 of 2007 on the file of First Additional Sessions Judge, Salem are set aside and the appellants/Accused Nos.1 and 2 are acquitted of all the charges and the fine amount paid, if any, is to be refunded to them. The Bail bond executed by Accused No.2-Chinnapaiyan shall stand cancelled. The appellant No.1/Accused No.1-Kalaiyarasi is directed to be released forthwith if her custody is not required in any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vks https://hcservices.ecourts.gov.in/hcservices/ To 1. 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, Salem Dist. 6. The Superintendent, Special (Women) Prison, Vellore. (For A1) 7. The Superintendent, Central Prison, Coimbatore. (For A2) 8. The Public Prosecutor, High Court, Madras-104. 9. The Section Officer, Criminal Section, High Court, Madras-104. 10. The Director General of of Police Mylapore, Madras-4 11. The District Collector, Salem. 1 cc to Mr.V. Sethuraman, Sr. 13775 CRL.A.No.1048 of 2007 MRD (CO) kk 24/4 https://hcservices.ecourts.gov.in/hcservices/