BAIL SLIP The Petitioners/Accused namely Chinnakannu and Sampath (S.C.No.205/2002 were directed to release on bail dated 20.8.2003 and made in Crl.M.P.No.7712 of 2003 in Crl.A.No.1236 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No. 1236 of 2003 1.Chinnakannu 2.Sampath .. Appellants/Accused vs. State rep. by Sub-Inspector of Police/ Deputy Superintendent of Police Vellore Sub-division Vellore District. (Crime No.96 of 2001) .. Respondent/Complainant Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. praying to call for the records in connection with S.C. No.205 of 2002 on the file of the Additional District and Sessions Judge, Vellore (Fast Track Court) Vellore District and set aside the conviction and sentence passed by the Additional District and Sessions Judge, Vellore (Fast Track Court) Vellore District in S.C. No. 205 of 2002 dated 22.07.2003. For appellants : Mr. E. Kannadasan For respondent : Mr. I. Paul Noble Devakumar Govt. Advocate (Crl. Side) J U D G M E N T The Criminal Appeal has arisen out of Judgment passed by the learned Additional District and Sessions Judge, Vellore (Fast Track Court) on 22.07.2003 in S.C. No. 205 of 2002, convicting the accused A1 and A2 for an offence under Section 498-A I.P.C. and sentencing them to undergo three years' rigorous imprisonment and also imposing a fine of Rs.5,000/- each in default to undergo three months' rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is as follows: P.W.1 Hamsa and P.W.3 Murugesan's daughter is deceased Indirani. The appellants/accused A1 Chinnakannu and A2 Sampath son is Kumar. The marriage between deceased Indirani and Kumar has been performed four years prior to this incident. During the lawful wedlock, the deceased has been blessed with two daughters. The husband of the deceased Indirani was working in the Indian Army and was on camp at Rajasthan and Bangalore. During the relevant period, Kumar was on camp at Bangalore. The deceased Indirani and her two children and the appellants/accused A1 Chinnakannu and A2 Sampath were residing at Kammavanpettai. On 24.03.2001 by 7 a.m., the deceased Indirani has constrained to administer the poison to her two daughters who were aged about two years and five months and herself consumed the poison. One Devendran, brother-in-law of deceased, another son of accused took all the three to the C.M.C. Hospital for treatment. On the way to the hospital, the five months old baby Janani died. The two years old Lavanya and Indirani were admitted in the hospital. P.W.4 Sivagami, sister of the deceased, received the information and she intimated the same to P.W.1 and P.W.3, her parents. On 25.03.2001 at 1.30 p.m., P.W.19 Balakrishnan, Inspector received the information from the C.M.C. Hospital and went to enquire P.W.1 Hamsa, the mother of the deceased Indirani and recorded her complaint in Ex.P1 and then, he registered a case in Crime No.96 of 2001 under Sections 302, 307 and 309 I.P.C. Then, he prepared a printed F.I.R. Ex.P20 and went to the place of occurrence and prepared Ex.P22 rough sketch and Ex.P5 observation mahazar. P.W.19 Inspector also seized M.O.1 an empty tin box and M.O.2 a 'paladai' under seizure mahazar Ex.P21, in the presence of witnesses P.W.6 Periasamy Udaiyar and P.W.7 Natarajan who were turned hostile. Then, he conducted the inquest of the body of five months old baby Janani on 25.03.2001 and prepared Ex.P23 inquest report. After inquest, P.W.19 Inspector handed over the body to P.W.13 Head Constable Boopalan along with Ex.P24 requisition to conduct autopsy. P.W.18 Dr.Philomena received the said requisition and the dead body produced by P.W.13. She conducted autopsy and issued Ex.P19 post-mortem certificate and Ex.P27 Toxicology Report of five months old baby Janani. The following injuries were noted in Ex.P19 post-mortem certificate: Appearances found at the post-mortem: External Appearance: Body lying in supine position arms close to sides, eyes closed. Mouth closed. Rigor mortis present in all the four limbs. No external injuries seen. Internal appearance: Opening of Thorax: No fracture. Hearty empty lungs congested c/s congestions present. Hyoid Bone intact. Opening of abdomen: https://hcservices.ecourts.gov.in/hcservices/ Stomach congested: 20 ml fluid present. Smells of some insecticide poison. Liver congested 100 gms. Spleen congested. Kidneys congested. Intestine congested. Opening of head: No fracture. Brain congested. Parts of visceral organs and preservative sent for chemical analysis. Forensic science lab, vellore. Pending chemical analysis the deceased would appear to have died 53 to 55 hours prior to post-mortem examination. Tox-H-200/2001 dated 04.05.2001 P.M.No. 220/2001 Cr.No.96/2001 Stomach with contents - Detected Malathion Intestine with contents - Detected Malathion Liver and Kidney - Detected Malathion Preservations - Did not detect Malathion. Opinion as to cause of death - The deceased would appear to have died of Malathion poisoning 53 to 55 hours prior post-mortem examination. After autopsy, the body of Janani was handed over to her relatives. On 29.03.2001 by 7.45 p.m., Indirani died. Since she died within 7 years from the date of marriage, the Revenue Divisional Officer P.W.17 Moorthy conducted an inquest on 30.03.2001 and prepared Ex.P18 inquest report of deceased Indirani and then, he gave a requisition Ex.P2 to conduct the autopsy. Along with the said requisition, P.W.15 Head Constable, Nedunchezhian, handed over the body to P.W.2 Dr.Bharani, to conduct autopsy. P.W.2 Dr.Bharani, conducted the autopsy and prepared Ex.P3 post-mortem certificate and Ex.P4 Toxicology Report of Indirani. The following injuries were noted in Ex.P3 post-mortem certificate: External Injury: Internal Examination: Skull – No fracture. Brain- Normal. Hyoid Bone intact. Thorax – No fracture rib. Lungs congested. Heart size normal. Abdomen – Stomach empty. Liver, Spleen, Kidney – Normal size. Cut section congested. Uterus – Normal size. Cavity empty The following viscera preserved for chemical analysis: 1.Stomach and its contents 2.Sample of intestine 3.Sample of liver and kidney 4.Sample and preservative. https://hcservices.ecourts.gov.in/hcservices/ The deceased would appear to have died about 20 hour prior to autopsy. Cause of death pending chemical analysis. 28.09.2001 Tox.H.208/2001 Cont. of Tox H.199 and 200/2001 Stomach did not detect Malathion. Intestine did not detect Malathion. Liver and Kidney – Detected Malathion – Malathion is an organophosp poison. Preservative did not detect Malathion. Final opinion: Deceased would appear to have died of poisons effect of organophosphorous insecticide. On 31.03.2001 at 3.45 p.m., two years old Lavanya died. P.W.16 Sub- Inspector of Police, Rajinikanth conducted an inquest on 02.04.2001 and prepared Ex.P17 inquest report of deceased Lavanya and then, he gave a requisition Ex.P8 to conduct the autopsy. Along with the said requisition, P.W.14 Shamsudeen Head Constable, handed over the body to P.W.8 Dr.Valarmathi to conduct autopsy. P.W.8 Dr.Valarmathi conducted the autopsy and prepared Ex.P9 post-mortem certificate and Ex.P10 Toxicology Report. The following injuries were noted in Ex.P9 post-mortem certificate: Internal Injury: Skull – No boney injury. Membrane intact, Brain congested. Hyoid bone intact. Thorax: No rib fracture. Lungs reddishness and congested. Heart flabby. Abdomen: All the internal organs normal in size. C/S congested. Stomach had pale brown coloured fluid about 50 ml. Mucosa congested. No pelvis bone injury. Stomach and contents, intestine and contents, liver and kidney preservative, sent to chemical examination. Deceased could appear to have died about more than 60 hours prior to autopsy. Opinion pending for chemical analysis report. Tox H 199/2001 dt. 04.05.2001 In all the above three specimen (had) detected malathion poison. Deceased would appear to have died due to malathion (organophosph) poison about 60 hours prior to autopsy. After autopsy, the body of Lavanya was handed over to her relatives. P.W.20 Inspector, Pandiarajan altered the F.I.R. under Sections 498-A and 306 I.P.C. and prepared Ex.P25 Alteration Report and he sent the same to higher officials. P.W.20 arrested the accused A1 and A2 on 22.06.2001 at 8.00 a.m. and they were produced before the https://hcservices.ecourts.gov.in/hcservices/ concerned Magistrate for judicial custody. P.W.21 Kali, Deputy Superintendent of Police took up the matter for further investigation. He has verified the investigation done by P.W.19 Balakrishnan and recorded the evidence of other witnesses, concluded the investigation and filed the charge sheet against the accused A1 and A2 under Sections 498-A and 306 I.P.C. 3. The trial Court after examining the witnesses and marking the documents, the accused were questioned as to the incriminating evidence under Section 313 Cr.P.C. and they denied the same. 4. On considering the oral evidence of P.W.1 to P.W.21 and documentary evidences Exs.P1 to P27 and M.O.1 and M.O.2 convicted the accused A1 and A2 for the offence under Section 498-A I.P.C. and acquitted the accused for the offence under Section 306 I.P.C. Against that, the present appeal has been preferred. 5. Challenging the conviction and sentence passed by the trial Court, the learned appellants counsel would contend that there is no iota of evidence before the Court to show that A1 and A2 found guilty of offence under Section 498-A I.P.C. The neighbours, who were independent witnesses and Ramesh, the house owner have turned hostile. Even attestors of the observation mahazar and seizure mahazar have turned hostile. Except the oral evidence of P.Ws.1,3 and 4, there is no evidence available to prove the accused guilty of the offence under Section 498-A I.P.C. He further submitted that P.W.1 Hamsa, mother of Indirani is a complainant, who wrote the letter in emotion. In her complaint Ex.P1, she never adhered that deceased Indirani was subjected to cruelty by her in-laws. On the basis of Ex.P1, the first case has been registered under Section 302 I.P.C. on the death of five months old baby Janani. At the time of preferring complaint, registered a case under Section 307 I.P.C. The two year old Lavanya was under treatment and registered a case under Section 309 I.P.C. for attempting suicide. Admittedly, the deceased Indirani was not examined and she has not given any statement. There is no reason as how the investigating agency has altered the offence under Sections 498-A and 306 I.P.C., without any further evidence or material. So, the trial Court has failed to consider that aspect. Hence, he prayed for allowing the appeal. 6. Per contra, the learned Government Advocate (Criminal Side) would submit on the basis of the instructions that it is true that the case has been registered under Sections 302, 307 and 309 I.P.C. After the death of Indirani, within 7 years from the date of marriage, the Regional Divisional Officer had conducted the enquiry and inquest and then, he gave final report Ex.P18. On the basis of https://hcservices.ecourts.gov.in/hcservices/ the said report, the case has been altered to 498-A I.P.C. and 306 I.P.C. So, the trial Court has considered the aspects in proper perspective and has arrived at a correct conclusion. Hence, he prayed for the dismissal of this appeal. 7. The factum of marriage between deceased Indirani and Kumar, son of the appellants/accused is not disputed. Due to the lawful wedlock, they are blessed with two children Lavanya and Janani, who are also victims of the incident. The death of Janani, Lavanya and Indirani was due to the consumption of poison, which was proved by the evidences of P.W.2 Dr. Bharani, P.W.8 Dr. Valarmathi and P.W.18 Dr. Philomena and Exs.P3, P4, P9, P10 and P19. So, the death is due to consumption of poison. 8. Now, this Court has to decide whether the trial Court was correct in holding that the appellants/accused were guilty of offence under Section 498-A I.P.C. As already stated that except the oral evidences of P.W.1 Hamsa, mother of the deceased Indirani, P.W.3 Murugesan, father of Indirani, P.W.4 Sviagami, sister of Indirani, no other independent witnesses were examined. It is pertinent to note that the complaint has been given by the mother and the occurrence had taken place on 24.03.2001 at 9.30 a.m. The complaint has been received by P.W.19 Inspector, Balakrishnan on 25.03.2001 at 13.30 hours and registered a case on 15.30 hours, which is 27 hours after the occurrence. But, P.W.1 has stated in her complaint Ex.P1 that since deceased Indiraini gave birth to two female children, she was in depressed mood. P.W.1 further stated that since Indriani's in-laws family also not having affection towards the children and due to the rejected mood, she committed suicide. 9. At this juncture, it is appropriate to consider the evidence of P.W.1. The learned counsel appearing for the appellants culled out some of the portions of the oral evidence of P.W.1. He fairly considered that the second accused was employed in Sugar Mill at Thirupathur, as a watchman. He visited his house once in ten days. P.W.1 has fairly considered that the second accused has not whispered anything about the grand daughters. Even on the date of occurrence, after information, A2 has returned from his mill. On the date of occurrence, he was not at the place of occurrence. In such circumstances, there is no iota of evidence against the second accused Sampath, father-in-law of deceased Indirani for cruelty and harassment met out by A2. So, I am of the view that the trial Court has not considered this aspect. Hence, the prosecution has failed to prove that the second appellant/second accused is guilty of offence under Section 498-A I.P.C. beyond reasonable doubt. Hence, the conviction and sentence imposed against the second accused Sampath under Section 498-A is unsustainable and it is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 10. Now this Court has to decide whether the mother-in-law was guilty of offence under Section 498-A I.P.C and whether it was proved by the prosecution beyond reasonable doubt? The learned counsel for the appellants culled out the portion from the evidence of P.W.1. Hamsa, mother of the deceased Indirani, in her evidence, she stated that the deceased Indirani was very fond of a male child. But deceased Indirani gave birth to a female child. So, she was very much worried. Then, she gave birth to the second child, that too a female child. So, she was in distressed mood. The cross-examination of the evidence of P.W.1 clearly proved that the deceased Indirani was born along with three more sisters in her family. Since she gave birth to two female child, she was in rejected mood. Then, she expressed her grief before her parents as follows: "2tJ bgz; FHe;ij gpwe;j nghJ vd; kfs; rypj;Jf; bfhz;lJ cz;ik. mts; tUk;nghbjy;yhk; jha; tP;l;oy; eh';fs; 4 bgz; FHe;ijfshf gpwe;njhk;. vdf;F gpwe;jJk; 2k; bgl;il bgz;fshf gpwe;Jtpl;ljhf brhy;ths;. mJ cz;ikjhd;. " P.W.1 fairly considered that the accused has not demanded any dowry and harassed the deceased for the demand of dowry. P.W.3 Murugesan, father of the deceased Indirani in his evidence in the chief examination has stated that since the deceased gave birth to two female children, she was abused by her mother-in-law. Then, there was a quarrel between the mother-in-law and daughter-in-law, after the deceased Indirani gave birth to the second female child. But, P.W.3 has given entirely different version. P.W.4 Sivagami, who is none other than sister of the deceased, in her evidence has stated that the deceased was very fond of a male child. Except the two witnesses, P.W.3 and P.W.4 relatives of the deceased Indirani, no one has deposed that she was subjected to harassment. 11. At this juncture, it is appropriate to consider the Section 113-A of the Indian Evidence Act. The first child aged about two years Lavanya and the second child Janani five months and there is no evidence to show that what prompted the deceased to administer the poison to the tender children. Except the mother-in-law Chinnakannu and deceased Indirani, no other were in the house at the time of commission of offence. No explanation has been offered by the first accused mother-in-law for the consumption of poison by her daughter- in-law. In such circumstances, I am of the view that unable to bear the cruelty and harassment met out to the deceased Indirani by the first accused, since she gave birth to two female children, she was forced to administer the poison to the tender children aged about two years and five months respectively and she herself consumed poison. So, the trial Court has considered the aspect in proper perspective and came to the correct conclusion that the appellant/accused A1 guilty of offence under Section 498-A I.P.C. So, the prosecution has proved that the first accused guilty of offence under Section 498-A I.P.C. The trial Court has convicted the accused under Section 498-A https://hcservices.ecourts.gov.in/hcservices/ I.P.C. 12. The learned counsel appearing for the appellants would submit that considering the circumstances of the case and the age of the accused and that except A1, there is no female in the family, and hence, he prayed for leniency in the sentence. Considering the said argument, three years' rigorous imprisonment may be reduced to one year rigorous imprisonment and fine of Rs.500/- is hereby enhanced to Rs.10,000/- out of which Rs. 7,500/- be paid as compensation to the victim's family. 13. In fine, * The Criminal Appeal is partly allowed. * The conviction and sentence passed against the second appellant/A2 under Section 498-A I.P.C. are hereby set aside. * The bail bonds, if any executed by A2 shall stand cancelled. The fine amount paid by A2 shall be refunded. * The conviction under Section 498-A I.P.C. against the first appellant/A1 is confirmed and the sentence is reduced from three years' rigorous imprisonment to one year rigorous imprisonment. The fine of Rs.500/- is enhanced to Rs.10,000/-, out of which Rs.7,500/- is ordered to be paid as a compensation to P.W.1 and P.W.3-victims family. * The period of imprisonment already undergone by A1 shall be set- off under Section 428 Cr.P.C. * Since the first appellant/A1 is on bail, the trial Court is directed to take steps to secure her custody to undergo the remaining period of sentence. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kj To 1.Additional District and Sessions Judge (Fast Track Court), Vellore. 2. The Principal Sessions Judge, Vellore (For information) 3. The Public Prosecutor High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 4. The Sub-Inspector of Police/ Deputy Superintendent of Police Vellore Sub-division Vellore District. (Crime No.96 of 2001) 5. The Judicial Magistrate No.I, Vellore 6. -do- The Chief Judicial Magistrate, Vellore 7. The District Collector, Vellore 8. The Director General of Police, Mylapore, Chennai-4 + 1 cc to Mr.T.S.Kannaiyan, Advocate Sr 11527 Crl.A.No. 1236 of 2003 JSV (CO) RH (25.3.10) https://hcservices.ecourts.gov.in/hcservices/