Judgment : David Annoussamy, J. A1 and A2 are living in G.15, Housing Board Colony, Pulla Reddy Avenue, Shenoy Nagar, Madras. They are husband and wife. A3 is a friend of theirs. Anandhi, deceased, is a girl aged 9 years who was serving in their house as maid servant. 2. While so, on 30.8.1983 at 6.55 a.m. one R.S. Sankaranarayana noticed a dead body before No.33, Barnaby Road, Kilpauk, Madras, on the road side and reported it to the police control room, which report was received by P.W.15, Head Constable. The information was passed on by P.W.15 to G-3 Police Station and received by P.W.26, Inspector of Police, Sankaranarayanan also informed P.W. 26 over phone. P.W.26 reached the spot at 7.20 a.m. on 30.8.1983 and found the dead body of a child aged 9 years in the place indicated by Sankaranarayanan. He registered a case under Sec.174 of the Code of Criminal Procedure, took up investigation and was able to gather the following information: Anandhi is the daughter of P.W.9. She was brought to Madras to serve as servant maid to A1 and A2 by the father of A1 from Devakottai in the month of February, 1983. A1 and A2 used to ill-treat Anandhi and beat her often. Two to three weeks prior to the date of occurrence, A1 called P.W.4, a maid servant in an another flat, through his daughter Uma and questioned whether Anandhi ate any milk powder. P.W.4 answered in the affirmative. Anandhi was beaten by A1 with broom stick twice or thrice and by A2 with hands. Then she was caught hold of by A1 and dashed forcibly against the bed room wall. Anandhi used to take the daughter of A1 and A2 to a nursery school run by P.W.5. When P.W.6., the School Aaya, saw Anandhi weeping, she enquired about the matter and Anandhi opened her heart and narrated all these sufferings she was enduring at the hands of A1 and A2 and complained of pain on the left side of her body. P.W.6 on 18.8.1983 reported the matter to P.W.5 the Headmistress of the School. P.W.5 in her turn enquired Anandhi and she narrated all her tribulations. At that time, A1 came in search of Anandhi. He was taken to P.W.5’s room by P.W.6 and P.W.5 warned him that any further ill-treatment to Anandhi would entail disastrous consequences for him. P.W.6 on 18.8.1983 reported the matter to P.W.5 the Headmistress of the School. P.W.5 in her turn enquired Anandhi and she narrated all her tribulations. At that time, A1 came in search of Anandhi. He was taken to P.W.5’s room by P.W.6 and P.W.5 warned him that any further ill-treatment to Anandhi would entail disastrous consequences for him. On 29.8.1983 at about 4.30 p.m. P.W.1 was called to the house of A1and A2 by one Thilagam. P.W.1 and Thilagam are living in other flats of the same apartment. The house of A1 and A2 was found bolted from inside. P.W.1 broke open the door at the request of A2 and found Anandhi sleeping. A2 kicked her in the abdomen two or three times; After about an hour A1 returned from the office and upon being briefed by his wife about the Anandhi sleeping and not opening the door, he beat Anandhi with hand and shoe. This occurrence was witnessed by P.W.1. At about 6.30 p.m. A3 carried Anandhi on his shoulder accompanied by A1; they engaged the autorickshaw of P.W.7 andtook Anandhi to Kilpauk Medical College Hospital where Anandhi was seen by P.W.11, the doctor in charge of the casualty Ward. A1 and A3 were seen again together completely drenched at about 9.30 p.m. by P.W.12 and they were not in a position to give any satisfactory reply for their being drenched to P.W.12’s query. The body of Anandhi was identified by P.W.7 and by P.W.9, Anandhi’s father, who came from his native place along with his wife. A1’s father also identified the body. P.W.25 who conducted the post-mortem found 41 external injuries and 6 internal injuries. Internal injury Nos.2 and 6 were considered by P.W.25 as having caused the death of Anandhi. 3. A1 was traced through the indication given by P.W.7 and was arrested on 31.8.1983 at 10.50 a.m. A3 was arrested on the same day at 7.30 p.m. at the Victoria Hotel. A2 who was absconding was arrested on 6.9.1984 in front of her house. The investigating officer on completion of the investigation filed reported under Sec.173 Cr.P.C. to the effect that an offence under Sec.302, I.P.C. read with Sec.34, I.P.C. appeared to have been committed by A1 and A2 and that an offence under Sec.201, I.P.C. appeared to have been committed by A1 and A3. The Sessions Court framed charges accordingly. The accused pleaded not guilty. The Sessions Court framed charges accordingly. The accused pleaded not guilty. The prosecution adduced the evidence gathered in the course of the investigation. That voluminous evidence consisted of depositions of 26 witnesses, 34 exhibits and 23 material objects. 4. When questioned under Sec.313, Cr.P.C. in respect of the incriminating piece of evidence appearing against them, A2 and A3 denied any complicity of theirs in the crime. A1 stated that he had no connection with the crime, that he found Anandhi missing from his house from 29.8.1983 and therefore he has given a complaint to the police about the same. 5. Thetrial Court found that the charge under Sec.302, I.P.C. against A1 and the charge under Sec.201, I.P.C. against A1 and A3 were not proved and acquitted them. It found that A2 was guilty for an offence under Sec.304-II, I.P.C. and sentenced her to three years rigorous imprisonment. Aggrieved by the judgment, the State has filed C.A.No.388 of 1985 challenging the acquittal of A1 and A3 and praying for the conviction of A2 under Sec.302, I.P.C. Accused 2 filed C.ANo.600 of 1984 against her conviction and sentence recorded by the Sessions Court. 6. Takingfirst the appeal by the State, we have to observe that in the appeal against an order of acquittal the power of the court is not the same as in the case of an appeal against conviction. In the latter case, the matter is at large and the appellate court can reach its own conclusion upon the material on record. As far as an appeal against an acquittal is concerned, the appellate court has to find out whether the view taken by the trial court is a possible one. If it is so, even if this Court is to take a different view, it cannot set aside the acquittal but has to confirm it. That such is the position of law is clear from several decisions of the Supreme Court, the most important of which are: Shiv Bahadur Sing v. State of Vindh. Pra., A.I.R. 1954 S.C. 322, Dinanath Singh v. State of Bihar, A.I.R. 1980 S.C. 1199, Ajit singh v. State of Gujarat, A.I.R. 1980 S.C. 1199: 1981 Crl.L.J. 293 and Vasudeo v. Suryakant, 1977 Crl.L.J. 1152. With these principles in mind, we shall again go back to the facts. Pra., A.I.R. 1954 S.C. 322, Dinanath Singh v. State of Bihar, A.I.R. 1980 S.C. 1199, Ajit singh v. State of Gujarat, A.I.R. 1980 S.C. 1199: 1981 Crl.L.J. 293 and Vasudeo v. Suryakant, 1977 Crl.L.J. 1152. With these principles in mind, we shall again go back to the facts. As far as A1 is concerned, the learned Additional Public Prosecutor would state that the fact of dashing the body against wall has been spoken to by P.W.4 an eye witness, and has been also spoken to by P.W.5, who is the Head Mistress of the nursery school, and P.W.6, Aaya, who were apprised of the facts by Anandhi, that their evidence has not been shattered by the prosecution and their evidence was corroborated by the evidence of P.W.25, doctor, who conducted the post-mortem on the body of Anandhi and found the internal injury No.1 as follows: “Fracture of 5th to 10th ribs on the left side posteriorly. Left pleural cavity contained blood stained brownish fluid filling the entire cavity. The parietal pleura is slightly thickened and opaque. There is a thick mass of reddish granulation tissue vertically present along the fractured sites at the back of left pleural cavity.” 7. The doctor has also stated that injury No.1 would have occurred two to three weeks prior to the death of the deceased and could have been caused by collision with blunt surface. No doubt an evidence is on record, but the doctor has clearly deposed that this injury will not lead to the death in the normal course. Anandhi would have only felt exhaustion but she could still walk. In fact, as per the version of the prosecution itself, Anandhi has been attending to her normal duties from that time. So A1 would be liable under Sec.324, I.P.C. 8. Learned counsel appearing for the accused pointed out that there is no charge whatsoever framed at any stage by the trial Court in respect of these injuries caused by A1. In fact, as per the version of the prosecution itself, Anandhi has been attending to her normal duties from that time. So A1 would be liable under Sec.324, I.P.C. 8. Learned counsel appearing for the accused pointed out that there is no charge whatsoever framed at any stage by the trial Court in respect of these injuries caused by A1. In fact, when we read the charge, we find only two, the first one for the occurrence which took place on 29.9.1983 in the afternoon which resulted in the death of Anandhi for which A1 and A2 were charged for commission of offence under Sec.302, I.P.C. The evidence of P.W.1 in respect of the overt acts of A1 on that day is to the effect that A1 beat Anandhi on her cheek and her back with shoe. As per the evidence of P.W.25, in respect of these overt acts, we find only injuries 38 and 39 described as follows: “38. Irregular abrasion with loss of epidermis on the left cheek, at the level of left eye, 2 cms. from the outer canthus, 1.5 x 0.1 cm. 39. Small irregular abrasion on the left cheek.” These injuries are not said to have contributed to death. The main indictment before the trial Court in respect of the liability of A1 was the fact A1 dashing Anandhi against the wall and in that respect the trial Court rejected the evidence of P.Ws.4, 5 and 6 on account of some discrepancies regarding the date. Taking into account the age of P.W.4, who is a maid servant of 12 years, and the intellectual equipment of P.W.6, who is an Aaya in a nursery school, we cannot expect them after such a lapse of time to be able to give precise dates of the occurrence and therefore the trial Court certainly erred in rejecting their evidence on that score. But, as observed earlier, the fact which is fatal to the prosecution is that no charge has been framed against the overt act of A1 committed, two to three weeks prior to 29.8.1983. only the facts which happened on the above date form the substance of charges 1 and 2 framed against the accused. For the above reasons we cannot convict A1 for his overt act even under Sec.324, I.P.C. 9. only the facts which happened on the above date form the substance of charges 1 and 2 framed against the accused. For the above reasons we cannot convict A1 for his overt act even under Sec.324, I.P.C. 9. As far as the acquittal of A1 and A3 under Sec.201 is concerned, the learned Additional Public Prosecutor would state that the offence of A1 and A3 is amply proved by the evidence of P.W.7, who took them along with Anandhi to the house of A1 by P.W.12. The report of the chemical analyst, Ex.P17. also shows that the blue dye in M.O.2 (gown) which was worn by Anandhi, is similar to the blue stain found in item 2, shirt, M.O.9 recovered from A3. It is also stated that the body of Anandhi was seen by road side by Sankaranarayanan and found there by P.W.26, the investigating officer, and that the body was identified by P.W.7 and P.W.9. the fact that A1 and A3 had thrown the body of Anandhi by road side appears to be proved. But one of the ingredients of the offence under Sec.201, I.P.C. is causing the evidence of commission of an offence to disappear. If A1 and A3 have hidden somewhere the body of Anandhi, they would certainly be liable for an offence under Sec.201, I.P.C. but they have just thrown it by road side. The observation mahazar would show that near compound wall under a bougainvillea plant the dead body was found with multiple injuries. It is not shown that the body was in any manner hidden. In fact, this fact of throwing the body happened on 29.8.1983 after the sun-set and early in the morning of next day, i.e., 30.8.1983 at 6.55 a.m. the body was noticed by one person viz., Sankaranarayanan. This also shows that there was no concealment of body by A1 and A3 attracting Sec.201, I.P.C. No doubt A1 acted in a cruel manner, unbecoming to a human being, in not at least ensuring a decent burial to his maid servant whose death was caused by his wife. But the acquittal of the trial court for an offence under Sec.201, I.P.C. is justified and does not warrant any interference. 10. But the acquittal of the trial court for an offence under Sec.201, I.P.C. is justified and does not warrant any interference. 10. Now, we shall turn to the appeal of A1 against her conviction under Sec.304-II, I.P.C. The stand of the Additional Public Public Prosecutor is that an offence under Sec.302, I.P.C. has been made out. The case of A2 is that no offence has been proved. We shall first take up the contention of the learned Additional Public Prosecutor. He would argue that the offence would be murder as defined under Sec.300, Sub-clause (4) of I.P.C. The various ingredients of Clause 4 of Sec.300, I.P.C. has been explained in detail in a recent decision of this Court in Mani @ Subramanian v. State, 1986 L.W. (Crl.) 275. It is enough for us for the purpose of this case to point out that one of the ingredients is that the act of the accused should be such as it must in all probability cause death. What A2 has done is to have kicked Anandhi on the abdomen. P.W.25 would explain that the death would appear to have been caused by asphyxia due to aspiration of stomach contents as a result of a blunt force applied to the abdominal wall which has resulted in the regurgitation of stomach contents into the pharynx and consequent aspiration of stomach contents in the respiratory tract. A2 could not have contemplated such a result when she kicked Anandhi. Therefore, the knowledge of imminent danger to life in all probability being absent in the mind of A2, she cannot be convicted under Sec.302, I.P.C. 11. We shall turn now to the contention raised by the learned counsel for the appellant/accused. He would say that the oral evidence of P.W.1 does not concord with that of the post-mortem doctor, P.W.25. P.W.25 found the following internal injuries among others. “2. Diffuse contusion of posterior walls of the abdomen on both sides retroperitoneally, reddish in colour. 6. Small area of contusions subserously seen in the mesentery of small intestine, two in number”. His opinion is: “Internal Injury Nos.2 and 6 are of recent origin as a result of blunt force applied on the abdomen either once or twice. It is possible by one of two kicks. They are due to the same force applied just prior to death. His opinion is: “Internal Injury Nos.2 and 6 are of recent origin as a result of blunt force applied on the abdomen either once or twice. It is possible by one of two kicks. They are due to the same force applied just prior to death. After a few seconds to few minutes the regurditation of the stomach contents may take place. Immediately of the kick on the stomach reguritation need not happen”. The argument of the learned counsel for the appellant is that P.W.1 deposed that A2 kicked on the Vila’ and that the doctor speaks of abdomen. We do not find much difference between the word Vila’ coloquially used by P.W.1 and scientific word ‘abdomen’ used by the expert witness. The clear case of the prosecution is that A2 kicked Anandhi on that day on that part of the body which in technical term forms part of the abdomen. The layman describing the same portion of the body in his own way does not destroy the case of the prosecution. We, therefore find no merits in the contention raised by the learned counsel for accused No.2 The conviction as recorded is proper and requires no interference. 12. As far as the sentence is concerned, the learned Additional Public Prosecutor would contend that the cruel act of A2 causing the death of her maid servant deserves more severe punishment and prayed for enhancement of sentence. But we find that as per the Government order Ms.No.180 dated 28.1.1989, the Government exercising the powers conferred by Sec.432, Cr.P.C. has remitted, in case of women who have been sentenced to punishment for offences other than those relating to murder or smuggling activities, the whole of the punishment to which they have been sentenced and therefore there is no room for any enhancement of sentence. We have only to declare that sentence imposed by the trial Court on accused 2 stands now remitted. 13. Before parting with this case, we have to make a few observations. Firstly, as per the prosecution P.W.11, Dr.Arumugam, who was the Assistant Surgeon in Kilpauk Medical College Hospital, Madras-10, at the time of his examination before the Court on 31.7.1984 was cited as a witness to speak to the fact that he has seen the deceased Anandhi was brought by A1 and A3 and pronounced her death. That official witness has turned hostile. That official witness has turned hostile. He deposed unequivocally that he had not given any statement before police and that he had not seen A1 and A3 at any point of time on 29.8.1983 from 1.00 a.m. to 8.00 a.m. the duration of his shift. Such a stand by the official witness is perplexing. Either P.W.11 would utter falsehood or the investigating officer, Thiru A.Viswanathan, Inspector of Police who deposed that he recorded the statement of P.W.11 has no regard to truth. The fact of an official witness turning fully hostile is something which in the normal course does not happen and should not happen. Therefore, enquiry has to be initiated to find out whose version is true and suitable action has to be taken against the erring officer. Since we are dealing with an appeal against acquittal we cannot ourselves probe further into this matter. It is to the Government authorities to take action. 14. Nextly, it is to be observed that in this pathetic case in which a small girl of 9 years who was employed by a family was continuously subjected to ill-treatments and was finally beaten to death, the Sessions Court has not taken care to peruse the records properly and frame charge in accordance with the provision of Sec.228, Cr.P.C. It has omitted to frame any charge in respect of the very serious overt act by A1 which happened two or three weeks prior to the final occurrence and which has resulted in fracture of two ribs and affected the normal functioning of one lung. It appears that the Judge instead of following the Provisions of Sec.228 read with Sec.227, which enjoins him to consider the record of the case and document submitted, has merely recopied what has been presented in the name of ‘charge-sheet’ by the investigating officer. It has been held in a judgment of this Court, viz., in D.Vedagiri, In re, 1985 L.W. (Crl.) 243, that the charge has to be framed only by the court and that the investigating officer has no right to file anything which in one way or other espouses the form of a charge sheet and such course some times would vitiate the proceedings. His role is confined to file a report under Sec.173, Cr.P.C., If such a report, instead of a ‘charge-sheet’ had been filed, it would have exhaustively indicated all the overt acts and would have enabled the court to frame properly and fully the charges and A1 would not have escaped unpunished for the grievous hurt caused to the poor girl. It is therefore necessary that the investigating officers abide by the provisions of Sec.173, Cr.P.C. and file a report instead of a ‘charge-sheet’ and that the courts should see that the provisions of Sec.173, Cr.P.C. are scrupulously followed by the investigating officers. 15. It is also to be noted that in this case the Sessions Court after perusal of the evidence should have taken steps to frame charge against A1 for an offence under Sec.324, I.P.C. as per the powers conferred by Sec.216, Cr.P.C. This is a serious lapse on his part. 16. With these observations, the appeal by the State, C.A.No.388 of 1985, as well as the appeal by the accused, C.A.No.600 of 1984, stand dismissed.