Murugesan vs State Represented By on 3 July, 2009

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.07.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE C.S.KARNAN

CRIMINAL APPEAL NO.944 OF 2007

1.Murugesan

2.Chinnammal .. Appellants

Vs.

State represented by

Inspector of Police,

Mathiganpalayam Police Station,

Dharmapuri District .. Respondent

This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed in S.C.No.95 of 2007 dated 20.9.2007 on the file of the Additional Sessions Judge, Dharmapuri. For Appellants : Mr.R.Sankara Subbu

For Respondent: Mr.N.R.Elango, APP

– – – –

JUDGMENT

(The judgment of the court was delivered by

M.CHOCKALINGAM, J.)

Challenge is made to the judgment of the Additional Sessions Judge,Dharmapuri in S.C.No.95 of 2007 whereby the first appellant/first accused was tried, stood charged and found guilty under Section 302 IPC read with 34 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.1000/- in default to undergo one year RI and he was also found guilty under Section 201 IPC and sentencing him to undergo 3 years R.I and to pay a fine of Rs.1000/- in default to undergo three months R.I. and the second accused found guilty under Section 302 IPC and sentencing her to undergo life imprisonment and to pay a fine of Rs.1000/- in default to undergo one year RI and and she was also found guilty under Section 201 read with 109 IPC and sentencing her to undergo 3 years R.I and to pay a fine of Rs.1000/- in default to undergo three months R.I. with the further direction to run the sentences concurrently by each accused. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 along with his wife who was examined as DW1 and mother A2 was living at Lalakottai Krishnapuram Village within the jurisdiction of the respondent police. While they had three female children, the wife of A1 gave birth to fourth child which was also happened to be a female child and hence A1 and A2 decided to do away with the child and accordingly they administered poison and as a result the child died. In order to screen the offence, they buried the dead body in the land in S.No.437/16. Suspicion was entertained by the neighbours. b)PW1, the Villge Administrative Officer of the said place was informed by his assistant about the suspicion entertained by the villagers. PW1 informed to the Tahsildar and thereafter he gave a complaint to PW10, the Sub Inspector of Police,Mathinkonpalayam which is marked as Ex.P.1 and on the strength of which, a case came to be registered in Crime No.229 of 2004 under Section 174 Cr.P.C. The Printed FIR Ex.P.13 was despatched to the Court and copies were actually served upon the Tahsildar and also PW11, the Inspector of Police of the Circle. c)PW11, on receipt of the FIR, proceeded to the spot and PW1 was also present in the place of occurrence. In the presence of the witnesses, the body was exhumed and inquest was conducted by the Tahsildar which was marked as Ex.P4. The body of the child was sent for postmortem.

d)P.W.6, the Doctor attached to the Government Hospital, Dharmapuri, on receipt of the requisition from the Tahsildar, has conducted post-mortem on the body of the child and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died 3 to 5 days prior to autopsy due to organo phosphorous insecticide poison. e) A requisition was sent by the Tahsildar to send the viscera for chemical Analysis. A requisition was sent by PW11, the Inspector of Police to the Judicial Magistrate concerned for sending material objects which is marked as Ex.P.14. Then he proceeded to the scene of occurrence and prepared Observation Mahazar Ex.P2 and drew Rough Sketch Ex.P.15. The witnesses were examined and on the intimation given by the Judicial Magistrate to the Tahsildar, the Section was altered into one under Section 302 IPC and the Express FIR Ex.P.16 was despatched to Court. The accused were arrested. The first accused gave a confessional statement voluntarily which is marked as EX.P.6. Pursuant to the confession,the first accused produced M.O.1, a plastic containing with screw type lid containing a few drops of brown colour liquid and M.O.2 a stainless steel ‘paladai” of the child. It was recovered under the cover of Mahazar. Ex.P.9 is the Bone Case report, Ex.P.10 is the Viscera Report and Ex.P.12 is the Chemical Analyst Report. On completion of investigation, the investigator filed final report.

3..The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and also relied on 16 exhibits and 2 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. On the side of defence, two witnesses were examined. The wife of A1 was examined as DW1 and also one doctor Shyam sundar was examined as DW2 and two documents were marked through the defence witnesses. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt found them guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of accused/appellants herein. 4.Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution has misrably failed to prove its case. The prosecution had no direct evidence to offer. The gist of the case of the prosecution was that A1 and A2 have administered poison to the child. Thus, the prosecution could not fix who has administered poison to the child. The dead body was exhumed after number of days. It was actually a natural death. The dead body was sent for analysis and the report was received only after a period of six or seven months. The said report was not useful to the prosecution case. Added further, in the instant case, DW1 was examined. she has categorically deposed that during the relevant point of time, she went outside for taking bath and at that time, A2, her mother-in-law under a mistaken impression that it was a Gripe water, gave it to the child and that she had no idea that it was a poisonous substance. To this effect, A2 also gave a statement, When she was examined under 313 statement. Actually during the relevant time, A1 was not present at all. The prosecution relied on circumstantial evidence, but the circumstantial evidence was not available and the prosecution was unable to prove the necessary circumstances pointing to the guilt of the accused. Under such circumstances, the prosecution misrably failed to prove its case and they are entitled for acquittal in the hands of this Court.

5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.

6.It is not in controversy that the fourth female child was actually buried. After the complaint, a case was registered under Section 174 Cr.P.C. as suspecious death. In the presence of the witnesses, the body was exhumed. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.6 Doctor who has given his categorical opinion that the deceased would appear to have died 3 to 5 days prior to autopsy due to organo phosphorous insecticide poison. It is pertinent to point out that at any point of time, the fact that the child died due to poisonous substance was never disputed by the appellants before the trial Court. The Prosecution has proved that the child died due to poisonous substance, by examining the postmortem doctor and the Chemical analyst, and also by sending the material Object M.O.1 bottle which was recovered pursuant to confession given that it contained the poisonous substance. It is pertinent to point out that while the prosecution came forward with the specific case that the cause of death was due to administeration of poisonous substance was never disputed by the appellants, on the contrary there are also two circumstances noticed by this Court which stood in support of the prosecution case that the child died out of the poisonous substance. The defence examined two witnesses viz.,DW1 who is none other than mother of the child. According to her, on the date of occurrence, she went out to take bath and at that time, for the purpose of digestion, under the mistaken impression that it was a gripe water, her mother-in-law, due to poor eye sight administered poison to the child. Added futher, A2 has admitted in her 313 statement that due to poor eye sight, she has administered poisonous substance to the child. From the above, it is quite clear that the poisonous substance was actually administered to the child by A2. At this juncture, it is pertinent to point out that the defence side has examined DW2, the doctor to the effect that A2 has poor eye sight.The occurrence took place on 25.5.2004. According to DW2, he examined the second accused only on 13.8.2007 and opined that she has got poor eye sight. It would be quite evident that D.W.2 examined the second accused three years after the date of occurrence and thus the evidence would show that she has got poor eye sight was of no avail to the defence. When the defence came forward with a plea that it has examined the doctor,DW2, the duty was cast upon the accused to prove the fact. Though, not the law would expect the evidence available should prove beyond reasonable doubt, the law would also expect principle of probability.In the instant case, by recording the evidence of DW2,such a defence plea was not proved. Hence, it is for the defence to prove that during the relevant time she has got poor eye sight and by mistake she has committed the crime. The exmination of the defence withness has failed to prove the said fact. The fact that it was A2 who administered poison to the child and it remains to be proved by sufficient evidence, it is for the defence to show that it was the mistake committed by A2, but A1 has misrably failed to prove the case. Under such circumstances, it would be quite clear that A2 who administered poisonous substance personally to the child and has caused female infanticide.

7. Learned counsel would further urge that since the second accused is 60 years old, leniency has got to be shown. It is not the case where the Court should show any leniency at all. The act of the accused can be termed as murder of the infanticide, which in the opinion of the Court, is heinous and under such circumstances the trial court is perfectly correct in finding her guilty under Section 302 IPC. But the prosecution had not brought home the guilt of the first accused beyound reasonable doubt. Therefore, the first accused is entitled for acquittal.In so far as A2 is concerned, the appeal has got to be dismissed. Further, the child has also been buried in order to screen the evidence which has come within the ambit of Section 201 of the Indian Penal Code and the punishments what is awarded by the trial court is reasonable. Hence we are of the considered opinion that both the punishments as rendered by the trial Court in so far as second appellant/A2 is concerned, are to run concurrently.

8. Accordingly, in respect of the first appellant/A1, the appeal is allowed and the first appellant is acquitted. Bail bond, if any, executed by the 1st appellants/A1 shall stand cancelled. The fine amount, if, paid, shall be refunded to him. This Criminal Original Petition fails in so far as the second appellant/A2 is concerned and the same is dismissed.It is reported that the second appellant is on bail and hence the learned trial Judge shall take steps to secure her presence and commit her to prison to undergo the remaining period of sentence.

VJY

To

1.The Additional Sessions Judge,

Dharmapuri.

2.The Inspector of Police,

Mathiganpalayam Police Station,

Dharmapuri District.

3.The Additional Public Prosecutor,

High Court,

Madras

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Author: savedaughters19

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