Judgment :- (Prayer: This Criminal Appeal has been filed against the judgment dated 28.08.2003 passed in S.C.No.64/2003 on the file of the Additional Sessions Court(FTC.No.I), Erode.) A.C. Arumugaperumal Adityan, J. This appeal has been preferred against the Judgment passed in S.C.No.64/2003 on the file of the Additional Sessions Court,(FTC-I), Erode. 2. The short facts of the case which led to the conviction of the accused/appellant herein relevant for the purpose of deciding this appeal are as follows: i) On 19.11.2002 at about 11.30 am when P.W.1-Srinivasan along with his friend Manigandan and Sureshkumar near the bank of Kavery at Kodumudi saw the accused proceeding towards the river holding her 1 ½ years old child on her hip and soon after the ladies by name Kala, Baby and Rajamani, who were collecting fire wood raised hue and cry that the accused had thrown her child into the river and that he immediately rushed to the place of occurrence near the river, but he could not save the child since the river was in spate at that time and that the accused was also made an attempt to commit suicide, but P.W.1 saved her and handed over her to the ladies to keep her in safety and then went to the village munsif-P.W.2 and informed about the incident, who also accompanied to the place of occurrence and thereafter the accused was brought to the police station and Ex.P.1-complaint was preferred by P.W.2 on the basis of the information given to P.W.2 by him(P.W.1). P.W.2-VAO has also corroborated the evidence of P.W.1 to the fact that Ex.P.1-complaint was lodged by him on the basis of the information furnished to him by P.W.1. P.W.3 is one of the women who was collecting fire wood at the place of the occurrence, is the eye witness to the occurrence. She would depose that at the time of the occurrence, the accused had drowned her child into the Kavery river and also made an attempt to commit suicide and at that time P.W.1 and his friend Manigandan and Suresh came there and rescued her and P.W.1 left the accused under her(P.W.3) custody and left to fetch the VAO and thereafter, P.W.2-VAO took the accused to the police station. P.W.9 is the Head Constable, who had registered the complaint under Cr.No.266/2002 under Section 302 and 309 IPC. Printed First Information Report is Ex.P.3. P.W.9 is the Head Constable, who had registered the complaint under Cr.No.266/2002 under Section 302 and 309 IPC. Printed First Information Report is Ex.P.3. P.W.9 in turn had informed P.W.10-Inspector of Police, who had took up investigation and recorded the confession statement and examined the witnesses and after failing in his attempt to fish out the corpusdelicti of the child Divya, had filed the final report. ii) The case was taken on file by the learned Judicial Magistrate, Kodumudi under PRC.No.3/2003 and on appearance of the accused copies under Section 207 of Cr.P.C. were furnished to the accused and since the case is triable by the Court of Sessions, the learned Magistrate had committed the case to the Court of Sessions under Section 209 of Cr.P.C. iii) The learned Additional Sessions Judge, Erode, has framed the charges under Section 302 IPC and under Section 307 IPC and when questioned the accused pleaded not guilty. Before the trial Court P.W.1 to 10 were examined and Ex.P.1 to P.4 and M.O.1 & 2 were marked. iv) When the incriminating circumstances were put the accused under Section 313 of Cr.P.C, the accused denied her complicity in the crime. After going through the available evidence both documentary and oral, the learned Additional Sessions Judge, Erode, had convicted and sentenced the accused under Section 302 to undergo life imprisonment and under Section 309 IPC to undergo one year RI. Aggrieved by the findings of the learned Additional Sessions Judge, Erode, the accused has preferred this appeal. 3. Now the point for determination in this appeal is whether the conviction and sentence under Section 302 and 309 IPC awarded by the learned Additional Sessions Judge, Erode, against the accused in S.C.No.64/2003 warrants any interference by this court for the reasons stated in the grounds of appeal? 4. 3. Now the point for determination in this appeal is whether the conviction and sentence under Section 302 and 309 IPC awarded by the learned Additional Sessions Judge, Erode, against the accused in S.C.No.64/2003 warrants any interference by this court for the reasons stated in the grounds of appeal? 4. The point:- An unfortunate woman by name Lakshmi @ Periakka, who had experienced sorrow and misery and also cruelty at the hands of her husband at Kulithalai, Trichy District, which had driven her to forcibly leave the matrimonial home, went to Kodumudi at Erode District; where also, she was under the clutches of poverty and misery which led her to take an extreme step of committing murder of her beautiful baby aged 1 ½ years by name Divya by drowning her in the Kavery river near Kodumudi and thereafter, made an attempt to put an end to her life, faced the ordeal of trial under Section 302 IPC and under Section 309 IPC and received life imprisonment under Section 302 IPC and one year RI under Section 309 IPC, is the appellant before this court. Heard Mr.J.Saravanan, learned counsel appearing for the appellant/accused and Mr.V.R.Balasubramaniam, learned Government Advocate. In this case corpus-delicti is missing. The learned counsel appearing for the appellant/accused would contend that since the prosecution has failed to produce the corpse of 1 ½ years aged child Divya alleged to have been murdered by the accused, who is none other than the mother of the above said child will be entitled for an acquittal. But this plea cannot be sustainable because there is eye witness to the occurrence viz., P.W.3. There is no motive attributed against P.W.3 to depose falsehood against the accused. But this plea cannot be sustainable because there is eye witness to the occurrence viz., P.W.3. There is no motive attributed against P.W.3 to depose falsehood against the accused. According to P.W.3, on the date of occurrence while she was collecting fire wood along with one Kala and Rajamani at the bank of river Kavery at Kodumudi, she saw the accused with her female child on her hip going towards the river and in spite of her advice the accused proceeded to the river and forcibly drowned her child into the river and also made an attempt to commit suicide and that due to the alarm raised by her and other people, who were present at the time, P.W.1 rushed to the place of occurrence along with his friends and their fervent attempt in search of the child resulted in vain and thereafter, the accused was brought to the bank and with the help of VAO, P.W.1 took her to the police station and preferred Ex.P.1-complaint. P.W.1 corroborated the evidence of P.W.3 to the fact that Ex.P.1-complaint was preferred by him(P.W.1). Even though P.W.1 and 3 have stated in their deposition that the accused attempted to commit suicide, in Ex.P.1-complaint there is no averment to the fact that after drowning the child, the accused had made an attempt to commit suicide. Due to the lack of sufficient evidence charge against the accused under Section 309 IPC has not been proved beyond any reasonable doubt. 5. Now let us decide whether the charge under Section 302 IPC has been proved. Even though the corpse of the child said to have been murdered by the accused was not produced by the prosecution, P.W.1 had seen a few minutes before the occurrence the accused along with 1 ½ years old child, proceeding towards the river. P.W.2-VAO has also deposed to the fact that the accused had confessed before him that she had killed her child by forcibly drowning the child into Kavery river. P.W.3 is the eye witness to the occurrence, who has seen the accused a few minutes before committing the crime along with the child proceeding towards the river and the accused forcibly drowning the child into the river. P.W.3 is the eye witness to the occurrence, who has seen the accused a few minutes before committing the crime along with the child proceeding towards the river and the accused forcibly drowning the child into the river. So, the fact that the accused had committed murder of her 1 ½ years old child Divya by forcibly drowning into the river Kavery has been spoken to by P.W.3, who is a reliable witness. 6. The next important point to be considered in this case is whether the offence committed by the accused comes under Section 299 IPC or whether she will come under any of the exceptions to Section 300 of IPC, warranting a lesser punishment. In this aspect P.W.6, a fruit shop onwer at Kodumudi in his evidence has stated that he (P.W.6) has seen the accused on 17.11.2002 i.e., two days prior to the occurrence with a child standing and weeping in front of his shop and on his enquiry, the accused had informed him that she had left the matrimonial home and her husband had treated her cruely and he was living with another woman and that due to poverty she cannot maintain her child and hence she had decided to kill the child and then to commit suicide. P.W.6 pacified her and advised her to take up the work of servant maid in his house and also gave five rupees to provide milk for her child and that she worked under his mother as a servant maid for two days and left the house on 19.11.2002 at about 10.30 am stating that she is going to river Kavery to have a bath and a Dharshan at the temple. But the suggestion put to P.W6 in the cross-examination was that when the accused was working as servant maid in the house of P.W.6, he made an attempt to outrage the modesty of her and since she has denied to budge to the attempt made by P.W.6, a false complaint was preferred against her. Even though the said suggestion was denied by P.W.6, the accused in her answer to the question when incriminating circumstances were put to her under Section 313 of Cr.P.C., has admitted that while she was feeding her child near the temple some persons made an attempt to outrage the modesty of her, but she prevented the same. Even though the said suggestion was denied by P.W.6, the accused in her answer to the question when incriminating circumstances were put to her under Section 313 of Cr.P.C., has admitted that while she was feeding her child near the temple some persons made an attempt to outrage the modesty of her, but she prevented the same. The same suggestion was also put to P.W.10-Investigation Officer, who has also denied. There is no motive suggested against the accused to take an extreme step of committing the murder of her own tender aged child of 1 ½ years. The circumstances, which led her to take the extreme step is that her matrimonial life with her husband was not cordial, since her husband was living with another woman and had thrown out the accused from the home with the child. She had all the way come from Kulithali, Trichy District to Kodumudi at Erode. On the pretext of extending a helping hand to the accused, P.W.6 had allowed her to stay with the child for two days in his house. But since P.W.6 also has made an attempt to outrage the modesty of the accused, she has no other go except to take the extreme step of committing the murder of her child. So, only due to sustained provocation, the accused has taken the extreme step of committing the murder of her child. The learned counsel for the appellant relied on the Judgment of a Division Bench of this Court reported in 1989 L.W.(Crl) 86 (Suyambukkani Vs. State of Tamil Nadu). The facts of the said case are exactly similar to the present facts of the case, which are as follows: "The accused in the said case had caused the death of her two children aged 2 ½ years and six months and also attempted to commit suicide by throwing the children and herself by jumping into a well. She was sentenced to undergo life imprisonment. The accused in that case took such an extreme step of murdering her children and also to commit suicide only because her marital life was not happy because of her husband's callousness. Her husband used not to give enough money for meeting the household expenses and also he became addict to drink, which resulted in poverty and destitution to the murder of the children. Her husband used not to give enough money for meeting the household expenses and also he became addict to drink, which resulted in poverty and destitution to the murder of the children. There were constant quarrel between the spouses and her husband never allowed her to go to her parents' house and never allowed her mother or brother to visit his house. The accused would endure the ill-treatments meted out to her, but it was hard to her to swallow the total absence of care and affection of the husband towards the children. Even when they were sick she will have to carry both of them herself and he would not oblige by carrying one of them. Under the above circumstances, the younger child has fallen sick for about a month. Then she managed to get permission to go to her parents' house, where she stayed for 10 days and came back on 25.6.1983. She was scolded for having remained for such a long time in her parents' house. She on the contrary on account of the continuous bad health of the small baby wanted to go back. Misunderstanding and quarrel between the spouses reached a climax and she was beaten, upon her return, then morning and evening on 26.6.1983 and also on the 27th in the morning and at the lunch time. The husband, who left the house after lunch came back home at about 9.30 p.m. on the 27th and found the door open without anybody inside. Upon enquiry with neighbours he learnt that she left the house and his search proved fruitless. On the next morning, the children and accused were found in the well. Under such circumstances, it was held by the Division Bench of this Court in the above said dictum as follows: "In this case, it is to be noted that more than the misery to which she was subjected, the accused was afflicted by the sufferings of her children. The father was not only indifferent, but even barbarous towards them. She got persuaded that after her death the children will be uncared of and would suffer innumerable torments and she could not reconcile with that idea. So it is after draining the cup of sorrow to the dregs that she decided to follow the Nallathangal's way. The father was not only indifferent, but even barbarous towards them. She got persuaded that after her death the children will be uncared of and would suffer innumerable torments and she could not reconcile with that idea. So it is after draining the cup of sorrow to the dregs that she decided to follow the Nallathangal's way. It is obvious that an act like that of the accused would not come within the meaning of murder, as contemplated in the Indian Penal Code. No doubt, the social fabric, as it prevails now in India, is responsible for the creation of situations like that of the accused. But the society will crumble, if each person even the mother who gave life to the children is to decide about life and death. The society expects the citizens, however ill placed they may be, to react to the situation, to call for help and to make an endeavour to survive. The act of the accused is obviously an offence in the contemplation of law. But it cannot be considered as an offence under Section 302 IPC, which is the most heinous crime dealing with the most dangerous activities to the society, and the authors of which could be exterminated by the imposition of sentence to death. In fact, it would be incongruous to impose the sentence of death on a person who attempted to commit suicide and who was saved there from. The extreme course of family suicide, the mother along with her children, is clearly in our opinion an excusing circumstance equivalent to those enumerated in the exceptions to Section 300 IPC, and will be therefore in the nature of an exception, when the mother escapes and children die, bringing the offence to one punishable under Section 304, Part I, IPC." The facts of the above said case squarely applies to the present facts of the case. 7. Under such circumstance, we are of the considered opinion that the accused is liable to be convicted only under Section 304, Part I, IPC since she comes under the exceptions to Section 300 IPC under the category of sustained provocation. The point is answered accordingly. 8. 7. Under such circumstance, we are of the considered opinion that the accused is liable to be convicted only under Section 304, Part I, IPC since she comes under the exceptions to Section 300 IPC under the category of sustained provocation. The point is answered accordingly. 8. In the result, the Appeal is partly allowed and the conviction and sentence in respect of under Section 309 IPC is set aside and conviction and sentence under Section 302 IPC is also set aside and the accused is convicted under Section 304, Part I, IPC and sentenced imprisonment for the period already undergone by her. The appellant/accused is to be released forthwith, if she is not required for in any other case. Bail bond stands cancelled.