BAIL SLIP The Accused is directed to release on bail made in Crl. M.P. 1 of 2006 in Crl.A.No.547/2006 order of this Honourable Court dated 24th day of January 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.547 of 2006 Kaliammal .. Appellant/Accused Vs. State rep. by Inspector of Police, Karimangalam Police Station, Dharmapuri District, (Cr.No.1406 of 2002) .. Respondent/Complainant Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the Judgment of conviction and sentenced passed by the learned Principal Sessions Judge, Dharmapuri, in S.C.No.179 of 2004 dated 22.03.2006. For Appellant : Mr.N.Doraisamy For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) The sole accused, Kaliammal, has come forward with this appeal challenging the Judgment of conviction and sentence passed by the learned Principal Sessions Judge, Dharmapuri, dated 22.03.2006. made in S.C.No.179 of 2004 convicting the appellant for the offence under Section 302 IPC and sentencing her to life imprisonment and also imposing a fine of Rs.5,000/-, in default, to undergo six months rigorous imprisonment and convicting the appellant under Section 201 r/w.302 IPC and sentencing her to one year rigorous imprisonment and imposing a fine of Rs.500/-, in default, to undergo three months rigorous imprisonment. The sentences were ordered to run concurrently. 2. The occurrence in this case is shown to have taken place on https://hcservices.ecourts.gov.in/hcservices/ 4.12.2002 at about 7 a.m. at the house of the accused wherein the accused with the intention of causing the death of female child aged 10 days born to her daughter one Sivagami, administered poison (kallipal) resulting in the death of the new born child deceased and thereby committed the offence under Section 302 IPC and thereafter buried the said body of the child in the field and screened the offence and thereby committed the offence under Section 201 read with 302 IPC. 3. The prosecution in order to bring home the charges against the accused examined P.Ws 1 to 9, filed Exhibits P.1 to P.16 beside marking Material Objects 1 and 2. 4. This is an unfortunate case of female infanticide. The accused is none else than the grand mother of the deceased child aged ten days. The mother of the deceased i.e., the daughter of the accused was not examined. P.W.2 is the brother of the mother of the child namely Sivagami. P.W.1 is the Village Administrative Officer. P.W.2 and the daughter of the accused Sivagami and the accused were residents of Murugampatti Village. P.W.2, uncle of the child stated that the mother of the child is his sister Sivagami and she after giving birth to the female child three years prior to the occurrence gave birth again and the second child was born and that child was also a female. At the time of the birth of the child P.W.2's sister Sivagami who is the mother of the deceased child was studying at Teachers Training Institute at Tiruvannamalai. Therefore sister of P.W.2 left the deceased child with her mother, the accused herein. P.W.2 was studying in school. He has stated that on his return from the school, he was informed by his mother, the accused that the child died and the child was buried in the field near a well. P.W.2 stated that he is not aware as to how the deceased died and the burial place was shown only by the accused. 5. P.W.1, the Village Administrative Officer of the village received the information on 7.12.2002 at 3 p.m., through the public about the death of the deceased child born to Sivagami, daughter of the accused. He went to the scene village and examined the accused and at that time, the accused informed him that the second female child was born to her daughter Sivagami and instead of giving mother's milk, the child was given cow's milk and as a result, the child died due to swelling in the stomach. It is further stated by P.W.1 that the death of the child was not informed to any one and the body was buried in the field near a well and the accused also shown the place of burial to P.W.1. 6. P.W.1 suspected the death of the child and gave a report Ex.P.1 to the Inspector, Karimangalam Police Station on 8.12.2002 at 6 a.m. P.W.6 registered the case in Cr.No.1406 of 2002 under Section 174 of the Criminal Procedure Code. Ex.P.10 is the Express First Information Report. P.W.9 received the message about the occurrence and went to the Police Station on 8.12.2002 at 8 a.m., and received the First Information Report. He has sent a report to the Tahsildar, P.W.4 and went to the scene of occurrence. He prepared https://hcservices.ecourts.gov.in/hcservices/ the Observation Mahazar, Ex.P.12 in the presence of witnesses. He also prepared the Rough Sketch, Ex.P.13. He made arrangement to take photograph. He examined P.W.2, P.W.3 and others. 7. At 1.45 p.m., P.W.4 Tahsildar, Palacode came to the scene of occurrence. The place of burial was identified by P.W.2 and P.W.3 dug the burial place and took out the body of the deceased child. The body was sent for Post Mortem. 8. The doctor P.W.5 attached to Government Hospital, Palacode conducted Post Mortem on 8.12.2002 as per requisition Ex.P.6 at the burial place of the body. The doctor P.W.5 made the following observation. "Internal examination:- Hyoid bone intact. Heart decomposed. Lungs decomposed. Stomach empty. Intestine empty decomposed. Liver, Kidney decomposed. Skull intact. Brain decomposed. Viscera preserved. " The doctor is of the opinion that the deceased would appear to have died of Benzodiazepin poison (fs;sp) 4 to 6 days prior to Autopsy. Ex.P.9 is the Post Mortem Certificate. 9. P.W.9 in continuation of his investigation altered the offence from Section 174 Criminal Procedure Code to one under Section 302, 201 IPC. The altered First Information Report is Ex.P.15. At 6.30 p.m., he has arrested the accused. In pursuance of the admissible portion of the confession of the accused, he recovered M.O.1, crowbar, M.O.2, spade under Ex.P.2. The accused was remanded to judicial custody. 10. After receiving the Post Mortem Certificate, Ex.P.9 and the Chemical Examination Report, Ex.P.16 and completing the investigation, P.W.9 filed the charge sheet against the accused for the offence under Section 302 IPC and 201 IPC on 14.12.2002. 11. When the accused was questioned under Section 313 of the Criminal Procedure Code in respect of the incriminating materials appeared against her, the accused has come forward with the version of total denial and she has not chosen to examine any witness on her side. 12. Mr.N.Doraisamy, learned counsel appearing for the appellant contended that the prosecution has not proved the case against the accused beyond reasonable doubt by adducing clear and cogent evidence and put forward the following contentions:- (i) The evidence of P.W.1 is unbelievable as he has given contradictory versions regarding the date and time of giving the report and further no one from the public examined to show about https://hcservices.ecourts.gov.in/hcservices/ giving information to P.W.1 about the death of the deceased. (ii) The prosecution has not examined the mother of the deceased child namely Sivagami, daughter of the accused herein and such non examination is fatal to the prosecution case. (iii)The evidence of P.W.2 brother of Sivagami, who is the mother of the deceased is also unbelievable and unreliable as he has not disclosed about the burial of the body of the child till his examination by the police. P.W.2 further stated that he is not aware as to how the child died. (iv) The entire case rests on the circumstantial evidence and the prosecution has not adduced clinching and incriminating circumstances leading to the only inference of the guilt of the accused. 13. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence by placing reliance on the circumstances. It is submitted that the body of the deceased was buried only in the field of the accused and the mother of the child left the deceased child only in the custody of the accused as per the evidence of P.W.2, son of the accused. It is contended that the identity of the body of the deceased is not disputed by the defence and the body was identified by P.W.2 who is the uncle of the child. 14. Learned Additional Public Prosecutor has further contended that P.W.1., Village Administrative Officer has given a report Ex.P.1 on the basis of the information of the death of the child and its burial. It is pointed out that the case of the prosecution is corroborated by the medical evidence as Doctor, P.W.5 opined in his Post Mortem Certificate Ex.P.9 that the deceased died due to poison namely Benzodiazepin (fs;sp). It is further contended that M.O.1 and M.O.2, the crowbar and the spade were recovered at the instance of the accused, which were used for digging a pit for burying the body. Therefore, it is contended that the prosecution has proved its case beyond reasonable doubt against the accused. 15. We have given our careful and anxious consideration to the rival contention put forward by either side and also thoroughly scrutinised the entire materials available on record and perused the impugned judgment of conviction. 16. The entire case rests on the circumstantial evidence. The prosecution placed reliance on the following circumstances:- (i) Motive for putting an end to the life of the child deceased as the child is the second female child born to the daughter of the accused namely Sivagami. (ii)The occurrence is said to have taken place at the house of https://hcservices.ecourts.gov.in/hcservices/ the accused and the body was buried and removed from the field of the accused. (iii)The medical evidence through the doctor P.W.5. As the post mortem certificate Ex.P.9 discloses that the deceased child died due to administration of poison (fs;sp) (iv) The recovery of M.O.s 1 and 2 crowbar and spade said to have been used for digging pit for burying the body of the deceased. 17. In a case of circumstantial evidence, the Honourable Apex Court has held in the case of Bodh Raj alias Bodha and others, Vs. State of Jammu and Kashmir reported in AIR 2002 Supreme Court 3164 as follows:- "....10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan (AIR 1977 SC 1063) Eradu and others V. State of Hyderabad (AIR 1956 SC 316) Earabhadrappa Vs. State of Karnataka (AIR 1983 SC 446) State of U.P. V. Sukhbasi and others (AIR 1985 SC 1224): 1985 Cri LJ 1224): Balwinder Singh V. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee V. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram V. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt....." The Hon'ble Apex Court has also made a reference about the earlier decision in the decision cited supra as hereunder:- ".....11. We may also made a reference to a decision of this Court in C.Chenga Reddy and others V. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. ...." https://hcservices.ecourts.gov.in/hcservices/ 18. Now let us consider the circumstances relied on by the prosecution in the light of the settled principle of law relating to the circumstantial evidence in the decisions cited supra. (i) In respect of the first circumstance namely motive, the prosecution is left with no evidence. P.W.2, the uncle of the child deceased and brother of mother of the deceased namely Sivagami has not made any whisper about the motive as the deceased was done to death as the child happens to be the second female child. P.W.1, Village Administrative Officer stated in his evidence that the accused during the examination by him stated that the deceased child was weeping during night and the child was given sleeping tablet and further given poison namely Erukkampal(vUf;fk;ghy;). The fact remains that except the oral statement of P.W.1, there is no other material and P.W.1 has also not recorded the statement of the accused in writing. In the absence of any materials or evidence available on record, we cannot presume that the deceased child was done to death as the child happens to be the second female child born to the daughter of the accused. (ii) The second circumstance relied by the prosecution is to the effect that the occurrence is said to have taken place in the house of the accused, but the fact remains that there is not an iota of evidence available on record to establish that the occurrence took place inside the house. Even assuming that the occurrence took place inside the house, it cannot be presumed that the accused administered poison to the child deceased and in order to implicate the accused for the commission of offence, the prosecution is bound to adduce some more incriminating materials to connect the accused with the alleged crime. Therefore, the prosecution has miserably failed to establish this circumstance also against the accused. (iii) The third circumstance relied by the prosecution is the medical evidence. The medical evidence through the post mortem certificate Ex.P.9 discloses that the child died due to poison. The evidence of P.W.5, the doctor who has conducted post mortem clearly shows that the body of the deceased was in a decomposed condition. Though the Forensic Report Ex.P.8 discloses detection of Benzodiazepin(fs;sp) , the prosecution is bound to prove as to who administered poison to the child. It is well settled that the suspicion however strong cannot be substituted for the legal proof. The person who is said to have dug the pit viz., P.W.3 with crowbar and spade namely M.Os 1 and 2 also not supported the case of the prosecution and he turned hostile. Therefore, without adducing any incriminating materials or circumstances, the accused cannot be fastened with the liability of administering poison to the child deceased. Therefore, we are of the considered view that the prosecution cannot be succeeded in establishing the guilt of the accused by placing reliance on the medical evidence. (iv) The last but not the least circumstance relied by the https://hcservices.ecourts.gov.in/hcservices/ prosecution is the recovery of M.O.1 crowbar and M.O.2 spade from the field of the accused. It is needless to state that the crowbar and spade normally used to be available in any agricultural field and the recovery of M.O.s 1 and 2 itself cannot be sufficient to implicate the accused for the alleged crime. As already pointed out, the person who is stated to have used M.Os.1 and 2 viz., P.W.3 turned hostile and not supported the case of the prosecution. Therefore, the recovery of M.O.s. 1 and 2 is not at all helpful to advance the case of the prosecution any any manner. 19. Apart from the above infirmities and inconsistencies in the circumstances put forward by the prosecution, this Court is also constrained to point out certain other disturbing features. (i) P.W.9, the Investigating Officer categorically admitted in his cross examination that none of the witnesses examined by him stated to the effect that they are suspecting the death of the deceased. P.W.9, the Investigating Officer has not chosen to examine even the accused. The Inquest Report Ex.P.14 prepared by the Tahsildar, P.W.4 discloses that there is no suspicion about the death of the deceased child. The child could have died due to consumption of cow milk and due to swelling of the stomach and breathing problem. (ii) Yet another disturbing feature in this case is that the prosecution has not chosen to examine mother of the child deceased Sivagami who is the competent witness to speak about the motive and the reason for the death of the deceased. We have no hesitation to hold that such non examination of the mother of the deceased child Sivagami is fatal to the prosecution case. (iii) It is also pertinent to be noted that though P.W.1, Village Administrative Officer claimed that the accused stated to the Tahsildar P.W.4 that she has administered poison namely Erukkampal (vUf;fk;ghy;), but this version of P.W.1 is not corroborated by P.W.4 as P.W.4 not whispered about the alleged extra judicial confession of the accused. 20. For the aforesaid reasons, we are constrained to come to the inevitable conclusion to the effect that the impugned judgment of conviction and sentence is unsustainable in law and accordingly the appeal is allowed and the conviction and sentence imposed on the appellant for the offence under section 302 IPC passed by the learned Principal Sessions Judge, Dharmapuri, dated 22.03.2006. made in S.C.No.179 of 2004 is hereby set aside. Fine amount if any paid is directed to be refunded to the accused. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar nvsri https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sessions Judge, Dharmapuri District at Krishnagiri. 2. The Judicial Magistrate, Dharmapuri. 3. - do – thro" the Chief Judicial Magistrate, Dharmapuri. 4. The District Collector, Dharmapuri. 5. The Director General of Police, Chennai. 6. The Inspector of Police, Mettur Police Station, Salem District. 7. The Public Prosecutor, Madras High Court, Madras. + 3 ccs to Mr.N.Doraiswamy Advocate SR No.29794,29594 Judgment in Crl.A.No.547 of 2006 SSK(CO) JJM(02.07.08) https://hcservices.ecourts.gov.in/hcservices/