IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.1.2008 CORAM: THE HON'BLE MR. JUSTICE D. MURUGESAN AND THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH CRL.A.NO.213 OF 2007 Tamilarasi @ Sivagami ...Appellant/Accused vs. State rep. By Inspector of Police, Selaiyur Police Station. ...Respondent/Complainant Appeal filed under Section 374(2) Cr.P.C. against the judgment dated 13.9.2006 passed in S.C.No.559 of 2005 by the learned Principal Sessions Judge, Chengelput. For Appellant : Ms. Revathi For Respondent : Mr. P. Kumaresan Addl. Public Prosecutor J U D G M E N T V. PERIYA KARUPPIAH, J. This appeal is directed against the judgment of conviction and sentence dated 13.9.2006 passed against the accused in S.C.No.559 of 2005 on the file of the Principal Sessions Judge, Chengalpattu. 2. The charge against the accused Tamilarasi @ Sivagami is that she being the mother of two female children viz., Sonali aged about five years and Menaha aged about four years, unable to maintain her children, got vexed in her life, after her husband had deserted her and two children, decided to cause the death of her children and in furtherance of the same, with intent to commit murder of the children, on 28.4.2005 at about 5.00 p.m., threw her two children into the well belonging to one Egambaram situated in his field at Kamaraj Nagar, knowingly that they would drown in the well as a result of which the two children died of asphyxia and thereby committed the offence punishable under Section 302 I.P.C. (two counts). https://hcservices.ecourts.gov.in/hcservices/ 3. Since the above charge was denied by the accused, the prosecution was burdened with the duty of proving its case. To prove the case of prosecution, P.Ws.1 to 11 were examined and Exs.P.1 to P.12 were marked. 4. The case of the prosecution as culled out from the evidence and the records is as follows: (a) The accused, who is a mother of two female children was deserted by her husband. She found it very difficult to bring up her two children, without financial and moral support from her relatives. Therefore, she left her village with her two children and came over to Chennai. (b) On the recommendation of Anna Nagar All Women Police, she got asylum in Kalaiselvi Karunalayam. There the accused was given employment and her children were sent to Palvadi School. The accused was also given stipend while she stayed in the orphanage and the same was deposited in her name in TNSC Bank. (c) Since the children were admitted in the residential school and the accused could not be allowed to stay in the said Karunalayam permanently, P.W.4, Mrs. J. Arul Thangam, sent the accused to one of its branch home at Tambaram. But the accused refused to stay there and therefore, she was sent to Malleswari Illam for Aged. There she stayed for some time. Since the accused did not like to stay in the Home, P.W.2, Tmt. Chandra, who was supplying milk to the Home was requested by PW.6, Vasuki, the Warden of the Home to take the accused and provide her with household work. (d) Accordingly, P.W.2, took the accused to a house for doing household work. When P.W.4 visited the accused at P.W.2's house, the accused told her that she was living happily with her earnings. But the accused did not continue the work and also refused to go to Home. Thereafter she brought her children and was living in a pathway near P.W.2's house. While so, she took her children with her and did not return thereafter. (e) On 28.4.2005, the accused came to P.W.1, the Village Administrative Officer at 5.00 p.m. and told him that she threw her two children in to the well as she could not maintain them. Immediately, P.W.1 and his assistant went to the field of Egambaram- P.W.3 and found the dead bodies of the two children floating in the well. Then P.W.1 took the accused to Selaiyur Police Station and gave Ex.P1-complaint which was registered by P.W.11, the Inspector of Police, Selaiyur Police Station in Cr.No.276 of 2005 under Section 302 I.P.C. (two counts) and the printed F.I.R. is Ex.P.9, which was sent to the Court and to higher officials. https://hcservices.ecourts.gov.in/hcservices/ (f) P.W.11 who took up the investigation, examined the accused, arrested her and took her to the place of occurrence at 7.30 p.m, where he saw the dead bodies of two female children floating in the well. He arranged to take the dead bodies out of the well with the help of villagers. He prepared observation mahazar- Ex.P.2 and rough sketch Ex.P.10 in the presence of P.W.8 and one Janakiraman. Thereafter, he sent the bodies to Royapettah Govt. Hospital to place them in the mortuary. He examined P.Ws.1 to 3, P.W.8 and other witnesses and recorded their statements. Since it was night time, he kept the accused in custody under the control of one lady Sub Inspector of Police. (g) On 29.4.2005, since the accused was short of hearing, assistance was sought from Kasturi Bai Nagar Deaf and Dumb School, Tambaram, to record the statement of the accused. Accordingly, P.W.7, Lakshmi and one Kalaivani were appointed for the said purpose and with their assistance, the statement of the accused was recorded in the presence of P.W.10, the Village Administrative Officer, Tambaram. Thereafter, P.W.11 sent the accused for remand. On the same day, he examined P.Ws.4 and 6 and recorded their statements. (h) On 30.4.2005, he went to Royapettah Government Hospital and held inquest on the bodies of the two children in the presence of panchayatars and the father of the accused-P.W.5. The inquest reports are Exs.P.11 and P.12. Then he sent the bodies for postmortem with a requisition. (i) On receipt of the requisition, P.W.9, Doctor V.Sathyamurthy attached to Government General Hospital, conducted autopsy on the bodies of the deceased children Sonali and Menaha, found no external injuries and opined that the deceased children could have died of asphyxia due to drowning and preserved the viscera for chemical analysis. He issued post certificates Exs.P.3 and P.4 respectively. (j) Viscera Report relating to the respective deceased children are marked as Exs.P.5 & P.6 and the Biology Report and Serology Report are marked as Exs.P7 & P8. (k) Since the accused was in custody, the bodies of the children were handed over to P.W.5, their grandfather. P.W.11 examined the doctor who conducted autopsy and some other witnesses also. Thus, on completion of his investigation, he laid the charge sheet against the accused for the above mentioned charge. 5. When the accused was questioned under Section 313 Cr.P.C., explaining the incriminating evidence available against her, she denied the said evidence and pleaded innocent. But the accused in https://hcservices.ecourts.gov.in/hcservices/ her written statement has submitted that the Warden of the Home at Selaiyur had illicit intimacy with P.W.1, the Village Administrative Officer, which was witnessed by her directly and the other witnesses P.W.2, and her daughter Revathi and one Sudhakar had also illicit intimacy which was known to the accused. On coming to know this, all those witnesses threatened her that they would kill her and her children. On the assurance given by her that she would not disclose to any one, they left her. But the said Revathi and Sudhakar had taken the children and had thrown them into the well. On seeing the same, she raised hue and cry. But nobody came to her rescue. Thereafter, the said Sudhakar pulled her to a distance. But the accused escaped from his clutches, ran towards the police station, but on the way, she got fainted and after regaining at 6.00 p.m., she went to the police at 7.00 p.m. and lodged a complaint, which was refused to be registered. Thereafter P.W.1 was called and some medicine was poured into her mouth, due to which she became unconscious and on regaining conscious, she found herself in the Vellore Prison. The accused did not examine any witnesses nor marked any documents to defend her case. 6. The learned Principal Sessions Judge, after evaluating the oral and documentary evidence, based her reliance solely on the extra judicial confession given by the accused to P.W.1 and came to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and found the accused guilty of killing her two children out of desperateness. Thus holding, she convicted the accused under Section 302 I.P.C. and sentenced her to undergo life imprisonment (two counts). Both the sentences were ordered to run concurrently. Hence this appeal by the accused/appellant. 7. Heard the learned counsel for the appellant, Ms. Revathi and the learned Additional Public Prosecutor, Mr. P. Kumaresan appearing for the State. 8. The learned counsel appearing for the appellant would submit in her arguments that the accused being the mother of the deceased children was affectionate towards them and was looking after them even two years after her husband deserted her. Further, she was living happily with her children and was earning by doing house hold work, which was spoken to by P.W.4, the Warden of the Home and therefore, she could not have murdered her children. According to the accused, as per her statement before the Court, it was one Revathi, daughter of P.W.2 and one Sudhakar took her two children and threw them into the well, as the accused had noticed their illicit intimacy. The said Sudhakar was said to have dragged the accused to his place. But, however, she managed to escape from https://hcservices.ecourts.gov.in/hcservices/ his clutches and went to the police station. But on the way, she got fainted and only on regaining conscious, she went to Selaiyur Police Station at 7.00 p.m. and gave complaint to the police alleging that Revathi and Sudhakar had murdered her children, which was refused to be taken on file. But P.W.1 was called to the Police Station. P.W.1 came with some other persons to the police station lodged a false complaint against the accused, which case was registered by the police. Thereafter, the police had beaten the accused and administered her with some drugs. When she woke up, she found herself in the Vellore Prison for Women. She would further submit that the lower Court had come to a conclusion of convicting the accused solely on the basis of the alleged extra judicial confession given by the accused to P.W.1, which was not corroborated by any other evidence and therefore, the conviction and sentence passed on the basis of the extra judicial confession will not stand before law and it has to be set aside. With the above pleadings, the learned counsel prayed that the accused is an innocent and she did not commit the offence as put forth by the prosecution and therefore, she has to be acquitted. 9. The learned Additional Public Prosecutor Mr. P.Kumaresan would submit in his argument that the evidence of P.W.1, the Village Administrative Officer to whom the accused had given extra judicial confession had given cogent evidence and the case was registered on his complaint in the presence of the accused by the respondent police. The bodies of the deceased children were recovered from the well only on the identification of the accused and therefore, the evidence showing the accused identifying her children's dead bodies in the well would support the evidence of the Village Administrative Officer, P.W.1 and therefore, the lower Court has correctly come to the conclusion of convicting and sentencing the accused on two counts for the commission of murder of her own children. He would further submit in his argument that the law is well settled that conviction could be based solely upon extra judicial confession without corroboration. He would also cite an authority reported in AIR 1975 SC 1320 (Maghar Singh v. State of Punjab) in support of his contention. Therefore, he had thrust in his argument that the evidence of P.W.1, which was supported by other circumstantial evidence could be relied upon well and the conviction and sentence passed by the lower Court be confirmed and the appeal be dismissed. 10. We have given our anxious thought and consideration to the arguments advanced on either side and perused the oral and documentary evidence available on record. 11. The case of the prosecution is that on 28.4.2005 at about 3.00 p.m., the accused having been frustrated in her life because of https://hcservices.ecourts.gov.in/hcservices/ the desertion of her husband and unable to bring up her two female children, had thrown her two children viz., Sonali and Menaha aged 5 and 4 years respectively into the well belonging to Egambaram-P.W.3 and thereby she had committed the murder of her two children. 12. As per the evidence of P.W.1, the VAO, Madampakkam Village, the accused had approached him on 28.4.2005 at 5.00 pm and had confessed that she had thrown her two children into the well because of the desertion of her husband and due to the poverty she suffered after her husband had left her with two female children two years ago. PW.1 after ascertaining the above fact by visiting the scene of occurrence, went to the police station immediately along with the accused and preferred a complaint – Ex.P.1. 13. Apart from P.W.1, the prosecution had also examined one Chandra, P.W.2 who would speak to the effect that the Warden of the Malleswari Home for Aged viz., Tmt. Vasuki-P.W.6 had asked her to take the accused for doing household works in any one of the houses and accordingly, she had taken the accused to do household work in a house and in that said house, the accused had worked only for four days and did not continue there. The accused also refused to go back to the said Home. But, she brought her two children from the residential school, where they were admitted by the Home and was staying in a pathway near her house. After 10 days she had taken away her children and did not return thereafter. 14. The Warden of the said Malleswari Home for Aged was examined as P.W.6. She has said in her evidence that the accused was referred to Malleswari Home by the Warden (P.W.4) of Kalaiselvi Karunalaya, Mugappair where the accused got asylum initially and she was asked to look after the accused at her Home and to provide some work for her. Accordingly, the accused had also gone with P.W.2, who managed to get a job for the accused. 15. Mrs. Arul Thangam, the Warden of Kalaiselvi Karunalaya, who was examined as P.W.4 would state in her evidence that the accused and her two children Sonali and Menaha were brought by two police women from All Women Police Station, Anna Nagar and they asked her to give shelter for the accused and her two children for some time. Accordingly, she had given accommodation to the accused and her two children temporarily in Kalaiselvi Karunalayam at Mugappair, where the accused was given caretaker job and her children were sent to education in Palwadi School and an account was also opened in the name of the accused in TNSC Bank for the purpose of depositing stipend payable to the accused. Thereafter, since the two children were admitted in Pre K.G. and L.K.G. Classes in a residential school at Tambaram on 14.10.2004, the accused was also https://hcservices.ecourts.gov.in/hcservices/ asked to stay at Tambaram Service Centre. But the accused refused to stay there. Therefore, P.W.4 asked P.W.6 to give accommodation to the accused in Malleswari Home for Aged, where the accused was also given accommodation. When P.W.4 visited the Home managed by P.W.6 on some other work, she had also visited the accused, enquired her and satisfied with the position of the accused, as the accused had expressed that she was living happily with her earnings. 16. None of the above witnesses have witnessed the incident. But they all, except P.W.1, came to know about the occurrence only on the information furnished or on seeing the news in the newspapers. 17. On a careful perusal of the evidence adduced by the prosecution witnesses, we could see that the accused was said to have been arrested on 28.4.2005 itself when P.W.1 had taken her to the police station for giving complaint of murdering her two children. It is also the evidence of the prosecution that the accused was present at the time of securing the bodies of the children from the well with the help of the light and the villagers and the observation mahazar was also prepared in the presence of the witnesses. The investigating officer, P.W.11 would also speak in his evidence to the effect that the accused was kept in the lock up during the said night under the care and custody of one Woman Sub Inspector of Police, Varalakshmi and he had commenced the investigation on 29.4.2005 by recording the confession given by the accused with the help of the teachers who were summoned from a Deaf and Dumb School, Kasturibai Nagar, Tambaram. Thereafter, the accused was taken before the Magistrate and was remanded to judicial custody on that day itself. 18. The accused, in her statement submitted while answering the questionnaire under Section 313 Cr.P.C., had categorically mentioned that she was an innocent and the children were taken away from her custody by one Revathi, daughter of P.W.2 and one Sudhakar and they threw her children into the well. But a case has been registered against her, despite she had given complaint against the said Revathi and Sudhakar. She would also state that she was beaten by the police and was administered with some drugs, which made her unconscious and when she regained conscious, she found herself in the Women Cell of Vellore Jail. 19. Under the above facts and circumstances of the case, we have to see what is the answer or evidence given by the prosecution to clear the suspicion raised by the accused. The investigating officer had spoken to the effect that he had recorded the statement https://hcservices.ecourts.gov.in/hcservices/ of the said Revathi during the course of the investigation. But strangely, she was not examined as one of the prosecution witnesses nor was any explanation given for her non examination. Apart from that, it is the case of the prosecution that the accused was kept in lock-up under the care and custody of one Woman Sub Inspector, Varalakshmi on 28.4.2005 night, before continuing the investigation on 29.4.2005. The said woman Sub Inspector was also not examined by P.W.11 during investigation nor was she examined as a prosecution witness before the trial Court. Thus, we could see that there is some laxity on the part of the prosecution to prove its own case. 20. There is no doubt that two female children of the accused viz., Sonali and Menaha died due to the drowning in the well which belongs to P.W.3 and the bodies were recovered on that day itself with the help of the villagers and others. The post mortem of the bodies of the children of the accused was done by P.W.9 and the post mortem certificates - Exs.P.3 and P.4 would go to show that those two children died of asphyxia due to drowning in the well. Therefore, the cause of death as per the medical evidence was asphyxia due to drowning in the well, which could be possible only by throwing the children into the well either by the accused or by some other persons or by the children themselves falling into the well. According to the prosecution case, the children were thrown into the well by the accused. Therefore, now the point for consideration is whether the prosecution has proved that the accused had committed the murder of her two children by throwing them into the well due to the poverty suffered by her. 21. The evidence of P.W.4, Arul Thangam and P.W.2 Chandra would go to show that the accused was employed in a neighbouring house of P.W.2 where she was earning for her children and her children were also accommodated in a residential School at Tambaram and she was happy when P.W.4 visited her. It is the evidence of P.W.2 that the accused brought her two children and was living with them in an enclosed pathway near her house at that time. Therefore, we could see that there could not be any poverty for the accused to take her to the decision of ending their life. The evidence of P.W.4 would go to show that the accused was asked to stay at Chromepet Home and since she was not willing to stay there, she was asked to go to Malleswari Home for Aged at Tamabaram and she was also accommodated there and from there, she was taken by P.W.2 for doing house hold work in a neighbouring house. Therefore, we could see that the accused was not put in a permanent employment as assured by P.W.4 at Mogappair. But however, she was having employment and was leading her life. In these circumstances only, the alleged commission of murder of two children was said to have taken place. https://hcservices.ecourts.gov.in/hcservices/ 22. The prosecution rests its case solely based upon the evidence of P.W.1, the Village Administrative Officer of Madambakkam Village to whom the accused is said to have given confession about her commission of murder of her two children. P.W.1 would also admit to the effect that the accused was short of hearing and that he had ascertained the facts as understood from her confession by questioning her in a loud voice. The investigating officer had also spoken to the effect that the accused was short of hearing and therefore, he had to engage the services of P.W.7, a teacher from the School for Deaf and Dumb Kasturi Bai Nagar, Tambaram for recording her statement. P.W.7 would also speak to the effect that she had translated the questions and answers posed to the accused at the time of recording her confession and some times she could also hear and speak well. The said confession cold not be produced as it does not attract Section 27 of the Indian Evidence Act. Therefore, the evidence adduced by P.W.7 and other evidence of the prosecution regarding the recording of confession of the accused lost its evidentiary value and will not support the prosecution case. 23. Now we have to see whether the sole testimony of P.W.1, to whom the extra judicial confession was made by the accused, could be relied upon and the conviction and sentence of the lower Court solely based on the said extra judicial confession is proper. In the judgment cited by the learned Additional Public Prosecutor vi., AIR 1975 SC 1320 (Maghar Singh vs. State of Punjab), the Apex Court had categorically mentioned that if the extra judicial confession given by the accused is established, then there is no necessity of corroboration and the Court can believe on the sole extra judicial confession to come to a conclusion of conviction. On the other hand, it is brought to the notice of this Court by the learned counsel for the appellant, that the Hon'ble Supreme Court of India had cautioned the lower Courts about the reliance made on extra judicial confession as it is a weakest proof, which requires support from other evidence. The said judgment of the Supreme Court of India was reported in 1998 SCC Crl. 1421 (Kavitha vs. State of Tamil Nadu), which would run as follows: "There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses." https://hcservices.ecourts.gov.in/hcservices/ 24. On a careful perusal of the