IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.11.2011 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRIMINAL APPEAL No.383 of 2011 1. Selvam, S/o.Ganesan 2. Thulasiammal, W/o.Selvam .. Appellants/Accused Nos.1 & 2 vs. State, represented by The Inspector of Police Kaveripattinam Police Station, Krishnagiri District Crime No: 1073 of 2005 .. Respondent Criminal Appeal preferred under Section 374(2) r/w 382 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Krishnagiri, made in S.C.No.115 of 2008, dated 07.06.2011. For Appellants : Mr.A.Ramesh, senior counsel for M/s.C.Arun Kumar For Respondent : Mr.V.M.R.Rajendiran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by T.SUDANTHIRAM, J.) The appellants herein are accused 1 and 2 in S.C.No.115 of 2008 on the file of the Principal Sessions Judge, Krishnagiri and the first accused stands convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months and accused 1 and 2 stand convicted for the offence under Section 201 r/w 302 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. The sentence of imprisonment imposed on the first accused would run concurrently. Challenging the said conviction and sentence, the appellants have preferred this criminal appeal. 2. The charges against the appellants/accused, are that the second accused, who is the wife of the first accused, gave birth of a female child, and as they already had a female child, the first accused administered tobacco juice to the four days' new born female https://hcservices.ecourts.gov.in/hcservices/ child and caused the death of the child and that both the accused, in order to conceal the offence, buried the child. 3. In order to establish the case, the prosecution examined P.Ws.1 to 11 and marked Exs.P1 to P15 and produced M.Os.1 and 2. 4. The evidence let in by the prosecution, in brief, are as follows: (a) P.W.1 is the Village Administrative Officer of Gundallapatti Village, Krishnagiri District. He gave Ex.P1 complaint to P.W.9 Inspector of Police, Kaveripattinam Police Station stating that the second female child born to accused no.2 on 25.11.2005 was dead and buried in their field and he suspected the death of the child. P.W.2, nurse of Primary Health Centre of Gundalapatti, deposed that on 25.11.2005, the first accused brought his wife/second accused, as she was having labour pain and she delivered a female child at 11.45p.m. After 3 days when she went to the house of the accused to give medicine, she came to know that the child died. P.Ws.3 and 4, who are the neighbours of the accused, and P.W.5, father of the first accused, did not support the prosecution case and hence they were treated as hostile witnesses. (b) P.W.8, Inspector of Police, Kaveripattinam Police Station, on receiving Ex.P1 complaint from P.W.1, registered a case in Crime No.1073 of 2005 under Section 174 Cr.P.C. on 06.12.2005 and prepared Ex.P8 First Information Report. P.W.11, Deputy Inspector of Police, on receiving copy of the first information report, took up the case for investigation and went to the scene of occurrence and examined P.Ws.1, 2, 3, 4 and one Murugesan and recorded their statements. He altered the case into one under Sections 302 and 201 I.P.C. and prepared Ex.P12 altered report. He also gave a requisition to the Tahsildar at Krishnagiri to exhume the body and conduct postmortem. (c) P.W.10 Tahsildar, Krishnagiri on receiving requisition, went to the scene of occurrence and exhumed the body of the female child and conducted inquest in the presence of panchayatars and prepared Ex.P9 inquest report and also prepared Ex.P10 Observation Mahazar. After the inquest, he sent Ex.P11 report to the Judicial Magistrate. (d) P.W.6 Doctor, on receiving Ex.P2 requisition, conducted autopsy over the body of the deceased child on 07.12.2005 at 5.15 p.m. and noticed the following: "The body was first seen by the undersigned at 5.00 P.M. on 7.12.05. Its condition then was Decomposed body. Post-mortem commenced at 5.15 P.M. on 7.12.05. Appearances found at the post-mortem Decomposed Female Neonate exhumed. Seen that body wrapped with yellow outer cloth. Lungi and flowered green cloth. Around hip black color (miu ehd; fapW). Face totally decomposed, eyes, ears, nose are not differentiated. Hair Dark 4 cm length. Peeled off skin. Body skin are peeled off. Length of the foetus 35 cm. https://hcservices.ecourts.gov.in/hcservices/ Breadth about 10 cm. ... tied by thread. Some Lungi cloth is (thread like) seen and .... genitals are decomposed. Int. Exam: Brain Liquid. Skull bone identified. Lungs... totally decomposed. Blood stained. Heart chamber empty. Intestine, Liver, Kidney are preserved for and stomach also preserved. Hyoid bone intact (Hyoid bone with skin tissue are preserved). PM concluded at 6.15 PM. Duration of Death – As per condition of decomposed may be more than 1 week. Opinion as to cause of death - (a) Reserved pending report of – cause of death. Reserved for chemical analysis report. Final opinion: As per chemical analysis report No.TOX.61-26/2006, Vellore, detected Nicotine poison. The Doctor preserved internal parts of the body for chemical examination and expressed opinion that the death was due to nicotine poison leading to respiratory arrest and death. Ex.P4 is the postmortem certificate issued by him. (e) P.W.11 on the same day at about 3.00 p.m. recorded the confession statement of the first accused in the presence of P.W.7 and another. Ex.P5 is the admissible portion of confession statement. Pursuant to the confession statement, he recovered M.Os.1 and 2, ever silver tumbler and spout bowl from the house of the accused under Ex.P6 Mahazar in the presence of the same witnesses. At 4.00 p.m. he prepared Ex.P7 Observation Mahazar and Ex.P12 Rough Sketch in the presence of the same witnesses. He remanded the accused to judicial custody at 9.00 p.m. On 18.12.2005, he sent requisition to P.W.10 for sending the internal parts of the deceased to the chemical analysis. He also gave Ex.P14 requisition to the Judicial Magistrate for sending the material objects for chemical analysis. He examined P.W.6 and recorded his statement on 01.02.2006. On completion of the investigation, he filed a charge sheet against the accused under Section 302 r/w 201 I.P.C. on 02.02.2006. 5. After completion of the recording of the evidence of the prosecution witnesses, the accused were questioned under Section 313 Cr.P.C. and they denied their complicity. On the side of the defence, no witness was examined and no document was marked. The trial Court after analysing the evidence, convicted and sentenced the accused as stated above. 6. The learned senior counsel Mr.A.Ramesh appearing for the appellants/accused, submitted that there is no direct witness to the occurrence and there is no direct material to connect the accused https://hcservices.ecourts.gov.in/hcservices/ with the alleged crime. The prosecution case though rests upon the circumstantial evidence, did not connect the accused to the alleged crime with proved circumstances. He further submitted that though P.W.6 Doctor has given opinion that the deceased child died due to nicotine poison resulting in respiratory arrest of the child, no toxicological report was received from the Forensic Department regarding the internal parts of the deceased child. The Doctor has given his final opinion based on Ex.P.3 toxicological report, which relates only to M.Os.1 and 2. The prosecution has not even established that the child died due to administering poison of nicotine. The learned senior counsel further submitted that the recovery of M.Os.1 and 2 and the detection of nicotine poison in those vessels should not be accepted, as they were recovered nine days after the alleged occurrence and the containment of poison in those vessels was only artificial. Mere recovery of M.Os.1 and 2 would not lead to an inference that nicotine poison was administered to the child. The learned senior counsel further pointed out that P.W.10 Tahsildar, who conducted inquest over the body of the deceased, gave Ex.P11 report, in which he has mentioned about the confession statement of the first accused, but he had not specifically spoken about it in his chief examination. Even otherwise, when the statement was obtained from the first accused, he was in the police custody and hence the alleged confession statement is hit by Section 26 of the Indian Evidence Act. 7. Per contra, the learned Additional Public Prosecutor submitted that the second accused gave birth to a second female child is an admitted fact and the child, which was alive for three days, had been buried in the night hours and the accused had not come forward with any explanation for burying the child. The recovery of M.Os.1 and 2 is a substantial piece of evidence, in which, as per Ex.P3 toxicological report, nicotine poison was detected and the Post-mortem Doctor also gave his final opinion that the death of the child was due to respiratory arrest because of administering nicotine poison. He further submitted that when the confession statement of the first accused was recorded by P.W.10, he was not in the police custody. Therefore, it is an extra judicial confession given by the first accused before P.W.10 Tahsildar and that is sufficient to convict the first accused. 8. We have carefully considered the rival submissions and perused the records. 9. The main charge against the accused is that the first accused had administered nicotine poison to the four days' old female child and thereafter the body of the child was buried. In order to establish this charge, there is no direct eye witness to the occurrence and there is no direct material in this case. The prosecution rests purely on circumstantial evidence, which are as follows: (i) The child died due to administration of nicotine poison; (ii) The first accused had admitted about his guilt and had given a statement before P.W.10 Tahsildar https://hcservices.ecourts.gov.in/hcservices/ during inquest; (iii) Recovery of M.Os.1 and 2 in pursuance of the confession statement of the first accused, in which, as per Ex.P3 toxicological report, nicotine poison was detected. Now, we have to analyse whether each circumstance is established by the prosecution and if so, whether they lead to the guilt of the accused 1 and 2. 10. With regard to the first circumstance that the child died due to administration of nicotine poison, P.W.6 Doctor, who conducted postmortem on 07.12.2005, gave his final opinion on 01.02.2006. In his final opinion, he had stated that the death of the child was due to nicotine poison, which led to respiratory arrest. The Doctor had admitted that he gave his opinion based on the toxicological report No.26 of 2006, which was marked as Ex.P3 by the prosecution. A perusal of Ex.P3 shows that the toxicological report relates to M.Os.1 and 2, ever silver tumbler and ever silver spout bowl (paladai) in which nicotine was detected. Absolutely, there is no record to show that the internal parts of the deceased child was sent for chemicals analysis to get a toxicological report. In the absence of the said report, we are unable to understand how the Doctor gave such an opinion based on Ex.P3 toxicological report, which relates only to M.Os.1 and 2 articles. If this opinion of the postmortem Doctor is unacceptable, then the cause of death of the child as homicidal remains un-established by the prosecution. The contention of the learned Additional Public Prosecutor that the accused failed to give explanation as to how the child died and it stands as a circumstance against the accused, is only to be rejected, since only when the prosecution establishes the fact that the child died due to unnatural cause, the burden is shifted on the accused, in whose custody the child was, to explain as to how the child died. 11. With regard to the second circumstance that the statement recorded by P.W.10 Tahsildar from the first accused during the inquest conducted by him, which amounts to extra judicial confession statement, it is to be seen now, whether it could be accepted and acted upon it. P.W.10, Tahsildar while giving evidence in his chief examination, had not deposed that he recorded the statement of the first accused. Though the report of P.W.10 (Ex.P11) contains about the particulars of the statement given by the first accused and the signed statement of the first accused forms part of Ex.P11, P.W.10 has failed to give evidence specifically regarding the confession statement said to have been given by the first accused. This being an incriminating circumstance, specific evidence ought to have been let in by the prosecution. The trial Court has also failed to notice it. With regard to this incriminating circumstance, no question is put to the first accused while he was questioned under Section 313 Cr.P.C. Furthermore, a contention was raised by the learned senior counsel for the appellants that the first accused had already been taken into police custody and as such, the statement given by the first accused to P.W.10 while he was in police custody is hit by Section 26 of the Indian Evidence Act. A perusal of the statement given by the first accused to P.W.10 reveals that it was prepared https://hcservices.ecourts.gov.in/hcservices/ after the completion of postmortem examination of the body of the deceased child. The postmortem was conducted at 5.15 p.m. According to the evidence of P.W.11 Investigating Officer, he had recorded the confessional statement of the first accused even at 3.00 p.m. and recovered M.Os.1 and 2 at 5.10 p.m. in pursuance of the confession statement. If it is so, it could be said that the first accused was in the custody of the police at the time of preparing the statement of the first accused said to have given to P.W.10. In the said circumstances, we are of the view that no reliance can be placed on the statement said to have been given by the first accused to P.W.10. 12. With regard to circumstance no.3 that M.Os.1 and 2 ever silver tumbler and spout bowl (paladai) were recovered from the house of the accused in pursuance of his confession statement, it is not denied by the first accused that those properties were recovered from his house. M.Os.1 and 2 were recovered eight days after the occurrence and in both the material objects, as per the toxicological report, nicotine was detected. The circumstance nos.1 and 2 being not established by the prosecution, it is not possible to convict the accused relying on the third circumstance alone. 13. It is well settled proposition of law that in order to bring home the guilt of the accused on the basis of the circumstantial evidence, the prosecution has to establish that the circumstances proved lead to one and only conclusion towards the guilt of the accused. The circumstances so proved must unerringly point towards the guilt of the accused, forming a complete chain and thereby not giving any room for other hypothesis than the guilt of the accused. 14. In this case, the prosecution having failed to establish through medical evidence that the child died due to unnatural cause and in the absence of any other clinching circumstance against the accused, we hold that the prosecution has miserably failed to prove the charges against the accused. 15. In the result, the criminal appeal is allowed and the conviction and sentence imposed by the Principal Sessions Judge, Krishnagiri in S.C.No.115 of 2008, dated 07.6.2011, on the appellants/accused 1 and 2, viz., Selvam and Thulasiammal are set aside and they are acquitted of all the charges. Fine amount, if any, paid by them, shall be refunded to them. Appellants/accused 1 and 2 viz., Selvam and Thulasiammal are ordered to be released forthwith, unless their custody is required in connection with any other case. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar ATR https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Principal Sessions Judge Krishnagiri. 2. The Chief Judicial Magistrate Krishnagiri. 3. The Judicial Magistrate No.1, Krishnagiri (PRC No.9/2006) 4. The Inspector of Police, Kaveripattinam Police Station Krishnagiri District. 5. The Superintendent of Prisons Central Prison, Vellore. 6. The Superintendent of Prisons Central Prison, Women Wing, Vellore. 7. The District Collector Krishnagiri District, Krishnagiri. 8. The Director General of Police Mylapore, Chennai 4. 9. The Public Prosecutor High Court, Chennai 104. 1 cc to M/s.C.Arun Kumar , Advocate, Sr.No.70831 CRL.A.No.383 of 2011 ss(co) pmk.1.12.2011 https://hcservices.ecourts.gov.in/hcservices/