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2006 DIGILAW 2233 (MAD)

Kamala v. State, rep. by the Inspector of Police

2006-08-31

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Appeal against the judgment and sentence dated 12.11.2003 made in S.C.No.59 of 2003 on the file of the learned Principal Sessions Judge, Vellore Division.) M. Karpagavinayagam, J. The crux of the accusation as against the accused is that she killed her grand daughter who was a just born baby. On this accusation, she was tried and convicted for the offence under Section 302 IPC. This is the subject matter of challenge in this appeal. 2. The short facts leading to the conviction are as follows:- (a) P.W.4 Jayanthi is the daughter of the accused. She had two female daughters. She is living in Bangalore along with her husband. The accused being a fruit vendor, having her business in Vaniyambadi, went to Bangalore to take P.W.4 to Vaniyambadi and brought her to Vaniyambadi and admitted in the Government Hospital for delivery. A girl child was born on 07.03.2000 at about 11.40 p.m. Unfortunately, the third child also happened to be a girl child. The child's legs were also found to be bend. Aggrieved over this, the accused decided to do away with the child and took the child from the hospital at 05.15 a.m. and went to the Municipality Well situated in Vaniyambadi Alagayam Road and dropped the child into the well. The body of the deceased was found floating on 10.03.2000. (b) P.W.1 is the Health Inspector, on being informed that a child was found floating inside the well, went and found the body in the well and gave a complaint to Vaniyambadi Police Station. (c) P.W.11 Sub-Inspector of Police received the complaint and registered a case for the offence under Section 318 IPC. (d) On coming to know that a case was registered, the accused went and surrendered before P.W.3, Village Administrative Officer and gave Extra Judicial Confession. The same was reduced into writing, Ex.P.3. (e) Then P.W.3, Village Administrative Officer went to Vaniyambadi Police Station along with the accused and handed over both the accused and Ex.P.3 to P.W.11 Sub-Inspector of Police. (f)In the meantime, P.W.11 Sub-Inspector of Police conducted inquest and prepared Observation Mahazaar (Ex.P.2) and the body was handed over to P.W.10 Doctor for conducting Post mortem. (g) P.W.10, Doctor conducted post mortem and issued the certificate Ex.P.4. He opined that the deceased would appear to have died of Asphyzia due to drowning. (f)In the meantime, P.W.11 Sub-Inspector of Police conducted inquest and prepared Observation Mahazaar (Ex.P.2) and the body was handed over to P.W.10 Doctor for conducting Post mortem. (g) P.W.10, Doctor conducted post mortem and issued the certificate Ex.P.4. He opined that the deceased would appear to have died of Asphyzia due to drowning. (h) On the basis of the Extra Judicial Confession, the case was altered into one under Section 302 IPC. (i) P.W.12 Inspector of Police took up investigation and examined other witnesses. His successor P.W.13 took up further investigation. After completion of the investigation, P.W.13 filed a charge sheet against the accused for the offence under Section 302 IPC. (j) During the course of trial, on the side of prosecution, P.Ws.1 to 13 were examined and Exs.P.1 to P.8 were filed. (k) When the accused was questioned under Section 313 Cr.P.C., the case of the accused is one of total denial. l) The trial Court, after having analysed the materials, found the accused guilty under Section 302 IPC and convicted and sentenced her to undergo life imprisonment and sentenced to pay a fine of Rs.1,000/-, in default to undergo Rigorous imprisonment for 6 months. Aggrieved over this, this appeal has been filed. 3. Mr.Sundar Mohan, learned counsel appearing for the appellant takes us through the entire evidence and contends that the evidence available on record would suffer from various infirmities and as such, the accused is liable to be acquitted. 4. We have heard Mr.Kumaresan, learned Additional Public Prosecutor on these aspects. 5. We have given our careful consideration to the rival contentions urged by the counsel on either side. 6. There are three sets of evidence : 1) Evidence of P.W.5, who saw the accused going near the well with the rag cloth bag and dropped the same into the well on 08.03.2000 at about 05.15 a.m. 2) Evidence of P.W.3, who recorded the extra-judicial confession made by the accused on 10.03.2000 at about 05.00 p.m., which is Ex.P.3 3) Evidence of P.W.6, Doctor and P.W.7 Nurse who speak about the conversation between P.W.4 daughter of the accused and the accused and refer to the decision taken by them for handing over the third girl child, who was not wanted by them. 7. On the basis of the above evidence, the Trial Court concluded that the prosecution has proved its case beyond reasonable doubt. 8. 7. On the basis of the above evidence, the Trial Court concluded that the prosecution has proved its case beyond reasonable doubt. 8. On going through the entire materials, it is clear that none of the pieces of the circumstances would inspire the confidence of this Court. 9. The first circumstance is the evidence of P.W.5. According to P.W.5, he saw the accused going near the well with a rag cloth bag and dropped the same into the well. He states that he happened to see the same when he was in his tea shop doing the tea shop business. Admittedly, both in the Observation Mahazaar and the rough sketch, there is nothing to indicate that some tea shop was situated near the well. Further, P.W.5 would admit that two days later when the body was removed from the well, he came to know that the accused dropped the rag cloth bag containing child. Further, he did not think it fit to inform the police. On the other hand, it is stated that P.W.5 was examined not immediately, but only two days later and the statement has reached the Court on 31.03.2000. Under those circumstances, we are not able to place any reliance on the evidence of P.W.5. 10. The second circumstance is Ex.P.3 extra-judicial confession. Admittedly, Ex.P.3 was recorded by the P.W.3 Village Administrative Officer subsequent to the commencement of investigation. It is also admitted by P.W.3 that immediately on coming to know that body of the child was found floating in the well, he went and saw the body and he participated in the initial investigation. When P.W.3, Village Administrative Officer, who saw the dead body, must have immediately reported the matter to the police. On the other hand, P.W.1, Health Inspector, gave a complaint to the police regarding the dead body found floating in the well. There is no reason as to why P.W.3 did not choose to inform the police immediately even though he admitted in the cross-examination that it is the duty to inform the police. If such being the case, the evidence relating to the recording of Extra Judicial Confession cannot be said to be recorded from the accused and cannot be said to be a valid one. If such being the case, the evidence relating to the recording of Extra Judicial Confession cannot be said to be recorded from the accused and cannot be said to be a valid one. A reading of Ex.P.3 as well as deposition given by P.W.3 both in Chief examination and cross-examination would not indicate that P.W.3 was already known to the accused. When P.W.3 is only a stranger to the accused, it is not explainable as to what made the accused to go to the Village Administrative Officer, that too two days later. A suggestion was put to the witnesses on behalf of the accused that she was available in the hospital and at that time, the police came and took her to the police station and obtained her signature in the white paper. The accused was also examined on 31.3.2000. So, these admissions and the suggestion put to the witnesses assume significance in view of the fact that P.W.3 who already participated in the investigation and who was not known to the accused earlier recorded the statement. It is true that the conviction may be passed on the mere Extra Judicial Confession. But, when the evidence relating to Extra Judicial Confession is far from satisfactory, we cannot convict the accused on the basis of mere extra judicial confession, as, in our view, it is circumvent with various suspicious circumstances. 11. In this context, it would be relevant to refer to the decision of the Supreme Court in Kishore Chand vs. State of Himachal Pradesh (1991 Supreme Court Cases (Cri)172). In paragraph 7, the Supreme Court has held as follows:- "........next piece of evidence is the alleged extra-judicial confession made by the appellant to P.W.10. An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the court along with other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made....." The above observation made by the Supreme Court, in our view, would squarely apply to the facts of the case on hand. 12. As indicated above, there is no reason as to why P.W.3 did not report to the police immediately after seeing the dead body. Similarly, there is no reason as to why the accused chose to go to the Village Administrative Officer and give the extra-judicial confession and that too, after two days when P.W.3 has already participated in the investigation of the said case. Therefore, we conclude that the extra-judicial confession given by the accused cannot be stated to be voluntary and as such, no reliance can be placed on it. 13. The third circumstance is the evidence of P.Ws.6 and 7. Admittedly, P.Ws.6 and 7 though referred to the conversation between the accused and P.W.4, they were not able to identify the accused in the Court. This also would not help the prosecution in any way. 14. Under those circumstances, we are of the view that the entire case would suffer from the above infirmities and as such, the accused is liable to be acquitted by giving benefit of doubt. 15. For the reasons stated above, the appeal is allowed and the conviction and sentence imposed on the appellant/accused are set aside and the appellant is acquitted of the charges framed against her. The bail bond shall stand cancelled. The fine amount if paid, shall be refunded to the appellant.