Bail Slip The Appellant/Accused Viz Uma was directed to be released on bail as per order of this Court dated 16.4.08 and made in Crl.M.P.No.1/08 in Crl.A.No.234/08 on the file of this Court.(And Subsequently the bail order was canceled by order dt 22.6.2009 and made in MP No.1/2008 in crl A No.234/2008. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.234 of 2008 Uma .. Appellant/Accused Vs. Inspector of Police, R10,MGR Police Station, Chennai – 600 083 (Crime No.1026/2007) .. Respondent/Complainant This criminal appeal has been preferred under Section 374 Cr.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.Kadirvel For 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 Sessions Division, Chennai made in S.C.No.221 of 2007 whereby the sole accused/appellant stood charged, tried and found guilty of murder and awarded life imprisonment along with fine of Rs.500/- in default to undergo three months simple imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows. https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.2 is the husband of the accused. The accused along with her husband P.W.2, her mother-in-law, her daughter Delhi Rani aged three months were residing in the second floor at Door No.40/90 Bharathy Nagar Main Road, Nesapakkam, Chennai-78. P.Ws.1 and 3 were the owners of the said house. On 19.4.2007 at about 2.00 a.m. when P.Ws. 1 and 3 were sleeping, the accused and her mother-in-law knocked the door. P.Ws.1 and 3 opened the door and they were informed that the child of the accused Delhi Rani was found near the washing stone on the ground floor. P.Ws. 1 and 3 along with the accused and her mother-in-law rushed near the washing stone and found the child with injuries. Immediately, they took the child to the private clinic and P.W.6 doctor examined the child and advised them to take the child to the Government Hospital for taking C.T. Scan. On the contrary, they brought the child to home and the child died at 4. a.m. on the same day. (b) The next morning, when P.W.1 was cleaning the verandah, she noticed pieces of black colour bangle M.O.1 and also blood stains. She entertained suspicion. Immediately, she went to MGR Nagar Police Station and gave a complaint Ex.P1 to P.W.11 Inspector of Police. On the strength of Ex.P1 complaint, a case came to be registered in Crime No.1026/2007 under section 174 Cr.P.C. and the printed F.I.R Ex.P8 was despatched to Court. olice took up investigation, proceeded to the spot, made an inspection, prepared the observation mahazar Ex.P2 and drew a rough sketch Ex.P9. Then,he called P.W.10 photographer and took photographs of the place of occurrence and the dead body of the child which were marked as M.O.7 series photos and M.O.8 negatives. He also examined the witnesses and recorded their statements. He conducted inquest on the dead body of the child in the presence of witnesses and panchayatdars and prepared Ex.P10 inquest report thereafter, the dead 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 his categoric opinion in Ex.P.7 post mortem certificate that the child would appear to have died of head injuries. (e) On 21.4.2007, the investigating officer examined the witnesses and the accused. Since the investigation revealed that the accused had committed the offence, he altered the section to 302 from 174 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.5 Revenue Inspector, the accused gave confessional statement and the admissible part is marked as Ex.P4, pursuant to which, she produced M.O.2 Yellow colour shirt and M.O.3 rose and violet colour blood stained kerchief and they were recovered under a cover of mahazar Ex.P5. Thereafter, the accused was sent for judicial remand. On completion of the investigation, the Investigating Officer filed a final report. https://hcservices.ecourts.gov.in/hcservices/ (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution marched 11 witnesses and relied on 11 exhibits and 8 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witness and she denied them as false. No defence witness was examined and no document was marked. The trial court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and found the accused guilty of murder and awarded life imprisonment. Hence, this appeal at the instance of the appellant. 3. Advancing the argument on behalf of the appellant, learned counsel inter alia would submit that according to the prosecution, the occurrence had taken place on 19.4.2007 during night hours and the 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 that the child was found near the washing stone on the ground floor. Then, they found the child with injuries and took the child to a private clinic. P.W.6 doctor gave initial treatment. Ex.P1 report was given by P.W.1 to P.W.11 Inspector of Police and on the strength of which a case came to be registered in Crime No.1026/2007 under section 174 Cr.P.C. A perusal of Ex.P.1 report clearly indicate that when the accused and her mother-in-law came to the house of P.Ws.1 and 3, they informed that the child sustained injuries and they took the child to a private clinic. No where it is averred that the child was found near the washing stone on the ground and sustained injuries. These are all new developments made and it was really a new case before the trial Court. 4. Added further learned counsel, in the instant case, only three inmates along with the child were present at the time of occurrence. P.W.2 was also present at that time and he was also examined but P.W.2 has turned hostile. The mother-in-law of the accused was present all along with the accused and she is the competent 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 , the accused and her mother-in-law knocked the door and stated that somebody has thrown the child to the ground floor. At the time of occurrence, the the accused along with P.W.2 her husband and her mother- in- law were available in the house but who has actually thrown the child among the three, is not known at all. Under such circumstances, 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, the prosecution placed before the trial Court another piece of evidence, the so called confession statement given by the accused. Even as per the evidence, the accused was actually available all along. The prosecution 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 Inspector who recorded the confessional statement pursuant to which the material objects were recovered and among the material objects, M.O.3 kerchief was actually found with blood stains. If to be so, the said kerchief should have been subjected to chemical analysis but it was not done and no explanation was given by the prosecution. All would go to show that the prosecution miserably failed from any angle but the trial Court has taken an erroneous view and found the accused guilty. Under such circumstances, the accused/appellant is entitled for acquittal in the hands of this Court. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the child of the accused/appellant was actually taken to a private hospital and P.W.6 doctor, after examining the child advised them to go to the Government Hospital but the child was brought home. Following the inquest made by P.W.11, the dead body was subjected to post mortem. P.W.9 doctor conducted autopsy and gave his categoric opinion as witness before the Court and also through the contents of post mortem certificate that the child died out of head injuries. Thus, no impediment is felt by this Court to record that the child died out of head injuries. 8. In order to prove the charge levelled against the accused that it was the accused who threw the child from the second floor to the ground floor and caused the death of the child, the prosecution relied on the circumstantial evidence since it had no direct evidence to offer. Even as per the prosecution case, the occurrence has taken place at 2.00 a.m. on 19.4.2007 and three inmates were available in the house viz., the accused, her husband and her mother-in- law. Out of these three persons, it was the accused against whom charge was levelled against but the mother-in-law of the accused though present all along was not examined as a witness. P.W.2 has turned hostile. Now, at this juncture, it remains to be pointed out that duty is cast upon the prosecution to bring the prime fact that it was the accused who threw the child from the second floor to the ground floor due to which the child sustained injuries and died. In the instant case, the non-examination of mother-in-law who was present all along in the house, in the considered opinion of the Court, is fatal to the prosecution case since the only witness in that regard P.W.2, husband of the accused, has turned hostile. The prosecution has no explanation to offer in this regard. 9. On 20.4.2007, P.W.1 has gone to the police station and has given Ex.P1, complaint at 10.00 a.m. On perusal of Ex.P1 report, it would clearly indicate that the accused was staying all along with her 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. when they were sleeping and when they opened the door, they stated that the accused child sustained injuries but nowhere it is stated in Ex.P.1 report that the body of the child was found in the ground floor and thereafter it was taken. She has stated in the evidence that she was informed by the accused and her mother in law that somebody has thrown the child from upstairs to the ground floor. Thus, it would be quite clear that these versions are newly developed at the time of evidence and no credence could be attached to this statement which thoroughly deviates from the statement made in Ex.P1 report. 10. Further, the prosecution much relied on the recovery of the material objects, pursuant to the confession statement alleged to have been given by the accused to P.W.5 Revenue Inspector. On analysis of that part of the evidence, the Court has to out right reject the same. Even as per the evidence, the accused person was all along present in the house but the arrest was shown only on 21.4.2007. She was also sent to the Revenue Inspector-PW.5 along with the officials to record the confession statement, then, the confession statement was recorded by P.W.5 and the admissible part was marked as Ex.P4. Thus, it looks unnatural. Apart from that, one of the material objects recovered was the blood stained Kerchief but the same was not subjected to chemical analysis though P.W.1 claims that she found the blood stains in the ground floor. The blood stains were also not recovered by the investigating officer which, in the circumstances of the case, is irregular and the non-recovery of the same, cannot be taken as a minor defects. 11. It is needless to say that in a given case like this, the Court must look that the circumstances must be completed without a snap pointing to the hypothesis that except the accused no one else could have committed the offence. If this test is applied, the court is of the opinion that the prosecution has miserably failed to prove the case. Even assuming that the child was actually thrown from upstairs to the ground and death was caused while three in mates were there, duty is cast upon the prosecution to find the real culprit but the prosecution is unable to fix the culprit out of the three inmates as to who actually committed such an act. Under these circumstances, accepting the evidence of the prosecution and sustaining the conviction, would be highly unsafe in the eye of law. The court is of the considered opinion that the prosecution has not proved the case beyond reasonable doubt and hence, the benefit of doubt should be given to the appellant and the appellant is to be acquitted. 12. It is report that bail granted to the appellant/accused on 16.4.2008 was cancelled on 22.6.2009. 13. In the result, the judgement of conviction and sentence imposed 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 be released forthwith unless her presence is required in connection with any other case. The bail bonds if any executed by the appellant shall stand terminated and the fine amounts if any paid by her is ordered to be refunded to her. vsi Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.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 2008 GV(CO) EU 21.7.2009. https://hcservices.ecourts.gov.in/hcservices/