IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 09.03.2010 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN Crl.A.No.1 of 2010 Vahitha ..Appellant/Accused ..Vs.. State by: Inspector of Police, Perambalur Police Station, Perambalur District. ..Respondent/Complainant (Cr.No.328/2007) Appeal filed against the judgment dated 15.10.2009 passed by the learned Sessions Judge, Mahalir Neethimanram, Perambalur in S.C. No.9 of 2008. For Appellant : Mr. Ganesh Rajan For Respondent : Mr. V.R. Balasubramaniam, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 15.10.2009 passed by the learned Sessions Judge, Mahalir Neethimandram, Perambalur in S.C. No.9 of 2008, whereby the sole accused stood charged, tried and found guilty of infanticide and awarded the punishment of life imprisonment and to pay a fine of Rs.2,000/- in default to undergo Rigorous Imprisonment for six months on being found guilty under Section 302 of the Indian Penal Code. 2. The short facts necessary for the disposal of the appeal can be status thus:- (i) P.W.1 is the mother-in-law of the appellant/accused. P.W.2 is the daughter of P.W.1. The appellant/accused belongs to Kolakkudi village. The marriage took place eight years prior to the https://hcservices.ecourts.gov.in/hcservices/ occurrence. A female child was born and she was six years old. At the time of marriage, her husband Abdul Rahim was employed in foreign Countries and he was sending money all along. The appellant was living in her parent's house. (ii) Prior to the occurrence, her husband made a request to his wife that she should live with his parents, since she was spending all the money lavishly. Hence, P.W.6 father of the appellant took her to Perambalur and left her with her child and went to native place. The accused stayed in the house of P.W.2 for few days and thereafter, came to the house of P.W.1. The accused was actually quarreling with her mother-in-law since she was not interested in putting her child for education at Perambalur. (iii) On the date of occurrence i.e. 21.6.2007 P.W.1 left the accused after preparing tea and went outside to get idli for the child. At that time, the appellant alone was inside the house along with her child. After sometimes later, when she came to the house, she witnessed that the appellant was strangulating the child and then she shouted at her. P.W.1 informed the same to P.Ws.2 and 3. The accused ran away from the place of occurrence. When they went near the child, they found the that the child is dead. (iv) Thereafter, P.W.1 went to the respondent-police and gave Ex.P1 report and P.W.10 Sub Inspector of Police on the strength of the same, registered a case in Crime No.328 of 2007 for the offence under Section 302 of the Indian Penal Code. First Information Report Ex.P10 and complaint Ex.P1 were despatched to the Court. (v) P.W.12 Inspector of Police took up investigation, proceeded to the spot, made an inspection and prepared observation mahazar Ex.P2 and rough sketch Ex.P12 respectively. He also took photographs through P.W.11 Photographer and the photographs are marked as Ex.P11. He also conducted inquest on the dead body in the presence of witnesses and panchayatars and the inquest report is marked as Ex.P13. Thereafter, he recovered M.O.1 mat and M.O.2 pillow from the place of occurrence under the cover of mahazar Ex.P7. (vi) Pursuant to the requisition made by the Investigating Officer, P.W.8 Doctor Saravanan conducted post-mortem on the dead body and issued post-mortem Certificate Ex.P5, wherein he opined that the child would appear to have died of strangulation and further the child died 6 to 12 hours prior to autopsy. He noted the following injuries in the post-mortem Certificate:- "External:- (1) Ligature mark present in front of neck of 20cm x 2cm on C/s – congested present. Hyoid bone taken for analysis." https://hcservices.ecourts.gov.in/hcservices/ (vii) Pending investigation, P.W.12 Inspector of Police arrested the accused on 21.6.2007 at about 4.30 p.m. She gave confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the same are marked as Ex.P9. Following the same, he produced M.O.3 saree and the same was recovered under the cover of mahazar Ex.P8. He examined the witnesses and recorded their evidence. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 14 witnesses and relied on 13 documents and also relied on M.Os.1 to 3. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, she denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, Mr.Ganesh Rajan, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. The prosecution case is that on 21.6.2007 at 8 a.m., the accused/appellant strangulated the child and caused her death. P.Ws.1 to 3 have been examined as eye witnesses before the Trial Court. 6. According to P.W.1, she went outside for purchase of idli and thereafter, she returned since she had forgotten to take money, as per Ex.P1 report. On the contrary, at the time of evidence, she deposed that the appellant gave hundred rupees for the purchase of idli and when P.W.1 was coming back, she found the accused strangulating the child with saree. But the same version was not given in the 161 statement. Thus, it is quite clear that the evidence of P.W.1 is discrepant. P.Ws.2 and 3, who are daughter and daughter in law of P.W.1 respectively, have come forward to give false evidence. Hence, it is quite clear that the prosecution has miserably failed to proved its case. 7. Learned counsel added further that according to the prosecution, the accused was arrested at 4.30 p.m. at Perambalur bus stand and she gave confession statement, following which M.O.3 saree was recovered from her. P.Ws.1 to 3, the so called eye witnesses have deposed that immediately after the occurrence, the accused fled away from the occurrence. P.Ws.4 and 5 have categorically admitted that the appellant was very well available and thus, the alleged https://hcservices.ecourts.gov.in/hcservices/ arrest at about 4.30 p.m. at Perambalur bus stand and the confession statement and the subsequent recovery cannot be anything but false. 8. Learned counsel added further the recovery of gown from the dead body of the child was produced by the police at the police station and the same was recovered under Form 95. If it be so, the alleged arrest and the confession statement of the accused at the best cannot be but false. Learned counsel added further, according to P.W.1, the police came to the spot immediately and thereafter, she went to the police station to give Ex.P1 report. On the contrary, the Sub Inspector of Police did not go to the spot itself, which would also falsify the case of the prosecution. 9. Learned counsel would further submit that the defence plea was that she left the house on 20th June, 2007 itself leaving the child along with P.W.1, but the occurrence had taken place on 21st June, 2007 and hence accused/appellant did not know as to how the death was happened. In such circumstances, the prosecution should have proved the case beyond reasonable doubts, but the prosecution has miserably failed to prove the case. The Trial Court has taken an erroneous view. Hence, the accused/appellant has got to be acquitted in the hands of this Court. 10. This Court heard the learned Additional Public Prosecutor on the above contentions. 11. This Court paid its anxious considerations on the above contentions. It is not in controversy that a female child, aged about 6 years, died out of asphyxia due to strangulation. This fact was proved by the prosecution through evidence by examining Doctor P.W.8 and producing Ex.P5 post-mortem Certificate. The cause of death as putforth by the prosecution was never disputed by the appellant. Hence, the Trial Court was perfectly correct in recording so. 12. In order to substantiate the case of the prosecution that the child was strangulated and killed by her mother/accused, the prosecution has examined three witnesses, out of whom, P.W.1 is the mother-in-law of the accused, P.W.2 is the daughter of P.W.1 and P.W.3 is the daughter-in-law of P.W.1. At this juncture, it is pertinent to point out that all the witnesses have spoken in one voice that at the time of occurrence, the accused was the only person available with the child. It remains to be stated that according to P.W.1, she went to purchase idli. When she came back, she found the accused/appellant along with the dead body of the child. https://hcservices.ecourts.gov.in/hcservices/ 13. Now learned counsel brought to the notice of this Court that according to P.W.1, when she was returning from the house, she found that the accused was strangulating the child, which was not available in 161 statement. It is true, when she gave Ex.P1 report, she has stated that she actually found the accused/appellant strangulating the child, which was not available in 161 statement. Even then, the only point that arises for consideration at this juncture is that when the child was left in the custody of the mother/appellant by P.W.1 at the time of occurrence, when P.W.1 came back, she found only the dead body of the child. At the time of occurrence, the appellant alone was available along with the child. Hence, it is for the accused to explain as to how the death was occurred. In the instant case, the prosecution proved that the child died of asphyxia due to strangulation. If to be so, it is for the mother/appellant to explain as to how the death was caused. 14. The defence plea putforth before the Trial Court and equally here also is that the accused was absent during the relevant time and she left the place leaving the child along with P.W.1. The Court is unable to agree with the same for more reasons than one. It is a false plea. Firstly, P.Ws.4 and 5 are independent witnesses, who are neighbors. According to P.Ws.4 and 5, the accused was very much available at the place of occurrence, which took place on 21st June, 2007 morning. Secondly, according to the police, she was arrested on the very day and she was produced before the Court. When the occurrence had taken place at 8 a.m., the case came to be registered at 9 a.m. and the First Information Report reached the Court on the same day. Thirdly, the accused was the only person available with her child at the place and time of occurrence and it is for the accused to explain as to how the occurrence had taken place. But, she did not explain. Under such circumstances, it is quite clear that the prosecution has proved its case that except the accused, no one could have committed the murder of the child. 15. It is brought to the notice of this Court that the appellant was originally living with her child for the past five years. Prior to the date of occurrence, her husband asked her to go to P.W.1's house and further he was not sending money and therefore, she came to the house of P.W.1. The fact remains to be stated that the accused/appellant had no excuse for causing the death of the child, if she is aggrieved with the husband or the mother-in-law. It is a case where the accused/appellant mercilessly killed the child, which would come under the definition of murder. The finding of the Trial Court that the appellant is guilty of murder and awarded with life imprisonment is perfectly correct. https://hcservices.ecourts.gov.in/hcservices/ 16. The Court is unable to see any reason either factually or legally to set aside the judgment passed by the Trial Court. Hence the criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Sessions Judge, Mahalir Neethimandram, Perambalur. 2. -do- Through The Principal Sessions Judge, Perambalur. 3. The Judicial Magistrate, Perambalur. 4. -do- Through The Chief Judicial Magistrate, Perambalur. 5. The District Collector, Perambalur. 6. The Director General of Police, Madras – 4. 7. The Superintendent, Special Prison for Women, Tiruchirapalli. 8. The Inspector of Police, Perambalur Police Station, Perambalur. 9. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. Ganesh Rajan, Advocate. S.R.No.15779. Crl.A.No.1 of 2010 RSM (CO) GSK 23.03.2010. https://hcservices.ecourts.gov.in/hcservices/