Judgment :- (Appeal against the Judgment dated 25.11.2004 in Sessions Case No.227 of 2003 delivered by the First Additional Sessions Judge, Dharmapuri at Krishnagiri) M. Thanikachalam, J. Aggrieved by the conviction and sentence, the accused in S.C.No.227 of 2003, on the file of the Additional Sessions Judge, Dharmapuri, have preferred this appeal. 2. The respondent police, brought the accused before the trial Court, to face the offences under Sections 302, 302 r/w 34 and 302 r/w 201 I.P.C. on the grounds that the first accused had committed female infanticide on 14.12.2000 at about 1.00 a.m. by administering Euphorbious that for the commission of the offence by the first accused, accused 2 & 3 contributed their common intention, that in order to escape from the legal punishment, they have caused disappearance of evidence by burying the dead body of the female child and therefore, they should be dealt with according to law. 3. The trial Court, after framing the charges, since all the accused refused to plead guilty, directed the prosecuting agency, to make out a case and responding the same, on behalf of the prosecution, 11 witnesses have been examined, seeking aid from 16 exhibits and M.Os.1 to 3. 4. The evaluation of the materials brought to surface, according to the assessment of the learned trial Judge, that all the charges framed against all the accused are proved beyond all reasonable doubt. In this view, the Ist Addl. Sessions Judge, Krishnagiri, convicted the accused and sentenced, A-1 for the offence under Sections 302 and 302 r/w 201 I.P.C., A-2 and A-3 for the offence under Sections 302 r/w 34 and 302 r/w 201 I.P.C., which are impugned in this appeal. 5. The prosecution case in brief: (a) Tmt. Valarmathi (A-1) is the mother of Tmt. Kavitha (A-3), whose husband is Madhu (A-2). A-2 and A-3 have already begotten two female children and thereafter, the third accused conceived once again. On 13/14.12.2000 at about 01.00 hours, A-3 gave birth to a female child once again causing much grievance to the accused, since they felt the third female child would be a burden, considering the social set up in and around. Therefore, all of them have decided to commit murder of the infant, before it has fully seen the light of the sun. Therefore, all of them have decided to commit murder of the infant, before it has fully seen the light of the sun. (b) At the instance of A-1; A-2 fetched Euphorbious in M.O.1 from the plant available in the backyard, which was administered to the infant through M.O.2 by A-1, for which A-2 and A-3 also contributed their acts. Because of the poisonous substance available in Euphorbious, the infant died forthwith. Thereafter, in order to escape from the legal punishment, they have decided to conceal the body and in that process, using M.O.3, digging a pit, the body was buried in the backyard of their house. Thus, A-1 to A-3 closed the chapter of the female infant without announcing its birth to the world. (c) The conscience of A-2 - the father of the infant, did not allow him to sleep peacefully apprehending danger one day or the other, when the truth comes to surface. In order to avoid the harassment in the event of the fact coming to surface, he approached the Village Administrative Officer-P.W.1 confessed his guilt to him, narrating the acts done by A-1 and A-3 also, on 15.12.2000, at about 8.00 p.m., which was reduced in writing by P.W.1 as Ex.P1. Pursuant to Ex.P1-extra judicial confession, P.W.1 ascertaining the facts, about the burial of the infant in the backyard of the house of the accused, satisfying himself, took the 2nd accused, handed over him to the police, accompanied with Ex.P2-complaint on the same day. (d) Thiru Gnanasekar, Sub Inspector of Police, (P.W.9) who was in charge of B-1 Dharmapuri Police Station on receipt of Exs.P1 & P2 and upon production of the accused on 15.12.2000 at about 22.30 hours, registered a case in Cr.No.2048/2000 under Section 302 I.P.C. for which he prepared Ex.P.15-printed F.I.R., submitted the same to the Judicial Magistrate, Dharmapuri, marking copies to higher authorities, including the Inspector of Police. (e) Thiru Rajan, the then Inspector of Police, Madhikonpalaym (P.W.10) was holding additional charge of B1 Dharmapuri Police Station also. When he had received the copy of the F.I.R., he rushed to the police station, where he had seen the accused as well as P.W.1. Upon examination by P.W.10, the 2nd accused confessed under Ex.P.5, willing to disclose the place where the tumbler and 'sangu' were concealed in the presence of P.W.5 and another, including the place where the infant was buried. Upon examination by P.W.10, the 2nd accused confessed under Ex.P.5, willing to disclose the place where the tumbler and 'sangu' were concealed in the presence of P.W.5 and another, including the place where the infant was buried. Pursuant to the confession, P.W.10 along with P.W.5 and others went to the backyard of the house of the accused, prepared Ex.P.16-sketch as well as recovered M.Os.1 to 3 under Ex.P.4. The investigation conducted by P.W.10 further revealed that A-1 and A-3 were also involved in the commission of the offence and therefore, he arrested them on 16.12.2000 at 5.15 p.m. and thereafter, remanded them to judicial custody. Meanwhile, the regular Inspector of Police resumed duty and the further investigation was handed over to P.W.11. (f) Thiru Neelakantan, P.W.6, the then Tahsildar, Dharmapuri upon information went to the house of the accused and prepared observation mahazar-Ex.P.10, as well as sketch-Ex.P.11 in the presence of P.Ws.4 & 5. Thereafter, the body was exhumed from the place, shown by the accused. After exhuming the body, P.W.6 conducted inquest in the presence of panchayatdars, which revealed as indicated in Ex.P.12, that the female infanticide was due to the administration of Euphorbious. To ascertain scientifically, he requested the Medical Officer under Ex.P.6 to conduct autopsy in the place itself. (g) Dr. A.C. Natarajan, on receipt of the requisition from the Tahsildar went to the place, where the body was exhumed at about 3.00 p.m. on 16.12.2000 conducted autopsy over the body of the female child, which revealed the following symptoms as incorporated in Ex.P.7: "Appearances found at the post mortem:- With recent surrounding, Eye closed, Mouth open. Tongue protruding out. Tongue and mouth reddish in colour. Skin peeling off. Head bluish blackish in colour. Umbilical cord tied with piece of cloth. No evidence of external injuries. Internal Examination:- Mouth red in colour. Tongue red in colour, Small sore seen. Scalp hair loose front of scalp congested. Vault normal. Meninges normal. Brain matter flowed out. Hyoid bone normal. Chest: Ribs normal, Lunges congested, Hear normal, Great vessesl normal. Stomach - empty, Loin bluish blackish. Spleen: Bluish blackish. Kidneys: congested. Bladder empty. Intestine - Normal, viscera preserved for chemical analysis. The doctor also preserved the viscera, for chemical examination. Scalp hair loose front of scalp congested. Vault normal. Meninges normal. Brain matter flowed out. Hyoid bone normal. Chest: Ribs normal, Lunges congested, Hear normal, Great vessesl normal. Stomach - empty, Loin bluish blackish. Spleen: Bluish blackish. Kidneys: congested. Bladder empty. Intestine - Normal, viscera preserved for chemical analysis. The doctor also preserved the viscera, for chemical examination. (h) P.W.6 requested the Judicial Magistrate No.I, Dharmapuri, under Ex.P.13 to send the viscera, preserved by the doctor, for chemical examination, which was complied with by the Court under Ex.P.14, which was attended by P.W.7, the then Head Clerk of the Court. (i) The chemical examination revealed as seen from Ex.P8 as follows: 1. Stomach & intestine - Detected toxin present in with contents, Euphorbious plant. 2. Liver - -do- 3. Kidney - -do- On that basis final opinion was given that the child appear to have died of Kalli (Euphorbious) poison. (j) The investigating officers have recorded the statements of the witnesses, then and there. Thus, completing the investigation, when the materials collected were analysed, it was felt that the accused have committed female infanticide and therefore, as said above, a final report has been filed, charging them under various offences as narrated above. (k) After the completion of the trial, when the accused were examined under Section 313 Cr.P.C., giving an opportunity to explain the incriminating circumstances available against them, they have stated, that the witnesses are not speaking the truth and they have nothing to do with the alleged death of the female child. The evaluation of the materials, however, brought to surface, the guilt of the accused, resulting conviction, followed by sentence, which are impugned in this appeal. 6. Heard the learned counsel, Mr.A.E. Kalaiselvan appearing for the appellant and the learned Additional Public Prosecutor, Mr. N.R. Elango. 7. The evaluation of the materials, however, brought to surface, the guilt of the accused, resulting conviction, followed by sentence, which are impugned in this appeal. 6. Heard the learned counsel, Mr.A.E. Kalaiselvan appearing for the appellant and the learned Additional Public Prosecutor, Mr. N.R. Elango. 7. The learned counsel for the appellants would submit, that practically there is nil evidence, against the accused and therefore, the conviction and sentence slapped upon them are unwarranted, illegal, liable to be set aside, that the extra judicial confession said to have been given by the 2nd accused cannot be used against the other accused as per the settled law and this being the position, the learned trial Judge committed an error in convicting all the accused on the basis of the extra judicial confession, which is inadmissible, that the circumstantial evidence relied on by the prosecution is not worthy of credence, since it fails to rope in the accused as the culprits, ruling out the possibility of their innocence or the involvement of others and that in the absence of any legal evidence as required under criminal jurisprudence, the conviction and sentence slapped upon the accused/appellants are liable to be set aside. On the basis of the above points, elaborating the same to some extent, based upon evidence and taking us through the materials, available on record, an argument was advanced for the acquittal of the accused. 8. We have heard the learned Additional Public Prosecutor on the above points, who supported the conviction not only on the basis of the reasons assigned by the learned trial Judge, but also on the grounds, that there are materials to corroborate the extra judicial confession given by the 2nd accused, which were not properly explained by the accused and the non explanation of certain circumstances by A1, would corroborate the extra judicial confession and in this view, the conviction and sentence at least as far as A-1 and A-2 are concerned are sustainable. 9. Though an attempt was made, as if the female child met its natural death, it was belied by the unchallenged scientific evidence. As spoken by Tahsildar, after exhuming the body, postmortem was conducted at the same place, by P.W.2. The doctor preserved the intestine and stomach contents as well as the liver and kidney. 9. Though an attempt was made, as if the female child met its natural death, it was belied by the unchallenged scientific evidence. As spoken by Tahsildar, after exhuming the body, postmortem was conducted at the same place, by P.W.2. The doctor preserved the intestine and stomach contents as well as the liver and kidney. At the request of the Tahsildar, the viscera so preserved were sent for chemical examination through Court, not challenged, as seen from Exs.P13 and P.14, which is spoken by P.W.7 also. The Scientific Assistant of the Forensic Department, who has examined the stomach and intestine contents, liver, kidney opined in Ex.P8 that 'Detected toxin present in Euphorbious plant'. On that basis, the doctor has given the final opinion, that the child appears to have died of Kalli poison, which is scientifically called Euphorbious. The opinion so given by the doctor, was not erased in the cross examination and in fact we would say that the cause of death, so spoken by P.W.2 is not questioned. In this view, we would conclude unhesitatingly, that the female child, whether it is aged 4 days or 1 day, was murdered by administering Euphorbious and the same should come within the meaning of culpable homicide. Thus concluding it is to be seen, who is the cause for administering the Kallipal to the infant. 10. As far as the mother of the female child viz., A-3 is concerned, practically there is nil evidence, which is also in a way conceded by the learned Additional Public Prosecutor. A-3, while she was examined, under Section 313 Cr.P.C., had stated that due to labour pain, from morning 7.00 a.m. she was unconscious and she had not made any attempt also, to screen the evidence if any. Even in the alleged extra judicial confession said to have been given by A-2, to P.W.1, as seen from Ex.P.1, whether it is admissible or not, we would discuss infra, there is no specific overt act said to have been committed, for terminating the life of the new born baby by the mother. The admitted or established position being so, unfortunately, in our considered opinion, the trial Court has committed an error in convicting A-3 in the absence of legal evidence, probably under the presumption, which is not available in this case, taking into consideration the social evil of female infanticide, alone. The admitted or established position being so, unfortunately, in our considered opinion, the trial Court has committed an error in convicting A-3 in the absence of legal evidence, probably under the presumption, which is not available in this case, taking into consideration the social evil of female infanticide, alone. Therefore, the conviction and sentence against A-3 is set aside finding her not guilty. 12. We are not against the view expressed by the learned trial Judge in curtailing, preventing, eradicating the female infanticide, since it is a social evil, but that does not mean for mere asking or complaining, the parents of the said female child, its relatives, such as grand mother should be sent to gallows, in the absence of legal evidence. We are not disowning our responsibility also, when this kind of cases comes, that should be dealt, with severely, thereby sending a message to the society, that no one has right to commit infanticide on the basis of the gender, thinking that it is a burden, or not possible for them, to bring up a female child, in the male dominated society, that too when the Social Welfare Government is spreading its wings to protect this kind of people, and rendering all assistance. Therefore, if the Court has to come down heavily upon this kind of social evil, mere presumption or thinking loudly alone should not be the cause for conviction, and to do so, as required under law, legal evidence is a must, since the Court is expected to discharge its function on legal evidence, in enforcing the law, coupled with social responsibility, since sentiment should not be allowed to eclipse the basic principles of law. In this view, we have to see what is the evidence available against A-1 and A-2. 13. Admittedly, there is no eye witness and the evidence said to have been gathered by the prosecution also failed to connect the accused directly. The only piece of evidence (if so) relied on by the prosecution is the extra judicial confession said to have been given by A2 to P.W.1 on 15.12.2000, at about 8.00 p.m. So we have to see the evidentiary value of the extra judicial confession, as well as its binding nature, upon the other accused, when both the accused are tried jointly in this case. 14. 14. Section 30 of the Indian Evidence Act empowers the Court, to consider the proved confession given by the co-accused also. It reads: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession". In order to enforce the said Section, it should be proved that the confession given by the accused, whether it is extra judicial confession or judicial confession or confession given to other parties, excluding the police, voluntarily, not influenced by extraneous circumstances. In this case, Ex.P.1 is the extra judicial confession, given by the second accused, which was spoken by P.W.1. In the cross examination, nothing is elicited to disbelieve his evidence as if Ex.P.1 would have obtained from A-2 for the purpose of this case, whether at the instance of the police or on the threat made by anybody. Therefore, we conclude that Ex.P.1 is the voluntary extra-judicial confession given by the second accused, but that alone will not save the case, since there is limitation to rely on the extra judicial confession in toto, in the absence of corroborative evidence, as repeatedly held by the Apex Court of this land. 15. A Constitutional Bench of the Apex Court as early as in 1953 held in Kalawati v. Him. Pra. Stath ( AIR 1953 SC 131 ), that the confession of one accused not evidence against a co-accused, tried jointly for the same offence, though it could be taken into consideration against him. Subsequently also, in 1956, a Constitutional Bench of the Apex Court in Nathu v. State of Uttar Pradesh ( AIR 1956 SC 56 ) has held: "Confessions of co-accused are not evidence as defined in S.3 and no conviction could be founded thereon, but if there was other evidence on which conviction can be based, they can be referred as lending assurance to that conclusion and for fortifying it.", Following the decision in Kashmira Singh v. State of Madhya Pradesh ( AIR 1952 SC 159 ). The same is the consistent view as seen from Hardeep Singh Sohal v. State of Punjab ( 2004 11 SCC 612 , State of M.P. v. Paltan Mallah ( 2005 (3) SCC 169 and Sidharth v. State of Bihar (2005 12 SCC 545). 16. In State of M.P. v. Paltan Mallah, the Supreme Court has observed in paragraph-18 of the Judgment as follows: "Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra judicial confession." 17. In Sidharth v. State of Bihar also, as seen from paragraphs-18 & 19 of the Judgment, it is held, that confession made by a co-accused shall not be the sole basis for conviction. In para-19, quoting Kashmira Singh v. State of Madhya Pradesh's case, it is held as follows: "that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept". In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept". Thus it is repeatedly held, authoritatively, that the confession of a co-accused cannot be treated as substantive evidence and if at all it could be pressed into service, when the Court has formed the opinion to accept other evidence, then realising the necessity of seeking for an assurance and in that case alone, the co-accused confession can be considered as mandated under Section 30 of the Indian Evidence Act. 18. There was a view by this Court, on the basis of Section 72 of the Criminal Rules of Practice, which says that Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the police investigation has begun, thereby making such confession or statement inadmissible. But this view was eclipsed by the Apex Court in Sivakumar v. State ( 2006 (1) SCC 714 ) on the ground that since the Village Administrative Officer is not coming within the meaning of a Police Officer, there is no possibility to exclude the admissibility of confession made before a person. In this view, it is to be seen, whether Ex.P.1 was recorded prior to the commencement of the investigation or subsequent to the commencement of the investigation, if it is shown that the same was voluntary, then admissible, as held by the Apex Court in Para-40 of the above said Judgment: "We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the description. While carrying out his duty to inform the police or the Magistrate in terms of Section 40 of the Code, the Village Headman does not act as a public servant removable only be or with the sanction of the local government nor does he act in his capacity as Magistrate." In this view, the statement given by the accused before the Village Administrative Officer is admissible and could be relied upon also. However, only on the ground of admissibility alone, a confession given by co-accused cannot be treated as evidence, against co-accused as ruled by the Apex Court, as indicated in the previous paragraphs. In this view, we have to test Ex.P.1 on the touch stone of credibility. 19. Though 11 witnesses have been examined on behalf of the prosecution, except P.W.1 who is the author of Ex.P1, no other witness has spoken anything, incriminatingly against the accused, whether it is against A-1 or A-2. The oral evidence of P.W.3, comes within the meaning of hearsay, therefore that should be excluded. All other witnesses those who have been examined as P.Ws.6 to 11 did their official performance after the incident. If the actual acts said to have been committed either by A-1 and A-2 is proved, apart from Ex.P.1, then the evidence given by other witnesses certainly would lend support against A-1 also and for that purpose, we have to see and marshal the evidence, and for this purpose, we do not have any scope also, since none had spoken about the acts said to have been committed either by A-1 or A-2. If the evidence adduced on behalf of the prosecution is capable of establishing the guilt of the accused viz., A-1 and A-2, then support from Ex.P.1 is permissible. In this case, the entire edifice of the case is built upon Ex.P1 not vis-a-vis. Even F.I.R. itself came to be registered on the basis of Ex.P.1. Thus, the investigation or the collection of other materials proceeded or radiated only from Ex.P.1 and the collection of the material has not commenced elsewhere, then coming to Ex.P.1, seeking corroboration. Thus, it is seen the prosecution seeks the help of Ex.P.1 alone to prove the guilt of A-1 or A-2, especially A-1, which is inadmissible. 20. The learned Additional Public Prosecutor would submit, that the extra judicial confession is corroborated by the recovery or disclosure of the facts as contemplated under Section 27 of the Indian Evidence Act. In this case, before the alleged confession said to have been given by the second accused to the investigating officer under Ex.P.5, the place of burial of the female child is known to the investigating agency, since the same is also disclosed in Ex.P.1. In this case, before the alleged confession said to have been given by the second accused to the investigating officer under Ex.P.5, the place of burial of the female child is known to the investigating agency, since the same is also disclosed in Ex.P.1. Therefore, it cannot be said that by the confession given by the second accused under Ex.P.5, the burial place was detected and consequentially it lends support to Ex.P.1. 21. The charge against A-1 is 302 simplicitor and the charge against A-2 and A-3 is under Section 302 r/w 34 I.P.C. Unless the offence under Section 302 I.P.C. against A-1 is proved, probably the offence under Section 302 r/w 34 I.P.C against A-2 and A-3 will not operate. It is the case of the prosecution that the first accused administered euphorbious through a conch like cup i.e. marked as M.O.2. It is the further case of the prosecution that the second accused brought 'Kallipal' from the plant available in the backyard in M.O.1. No case is projected that they have washed these two apparatus. Therefore, in the normal course, these two M.Os. ought to have been sent for chemical examination in order to find out the availability of toxin called euphorbious. If these two were used by the accused, there might have been some possibility of their finger prints available therein also. The prosecution has not made any attempt to collect evidence from the material objects also. If these things were properly done and the accused are fixed on that basis, then there is nothing wrong in seeking the aid of Ex.P.1 as corroborative piece of evidence to implicate A-1. 22. The learned Additional Public Prosecutor further argues that the first accused has not explained under what circumstances, the female infant body was buried in the backyard. Only on the basis of the non explanation of this circumstance alone, in the absence of any other connecting materials against A-1, we hesitate to affix the seal of culpability against A-1, since it may not be safe to convict A-1, that too on the basis of the confession given by the co-accused before P.W.1, which is directly inadmissible, though it could be taken into consideration, if there are other materials. 23. 23. Unfortunately, the trial Court has not analysed the evidence properly and the settled proposition of law regarding the admissibility of Ex.P1 and quoting some new versification (g[Jftpij) convicted the accused moved by sentiments, for which we are unable to affix our seal of approval, since there is no legal evidence, for sustaining the conviction. In the light of the above discussion, the finding of the trial Court is liable to be set aside allowing the appeal. In the result, the appeal is allowed and the conviction and sentence of the trial Court is set aside; all the accused are found not guilty of any of the charges and they are acquitted. The bail bonds of the third appellant, if any, shall stand cancelled. The fine amount, if any, paid by the appellants shall be refunded. The 1st & 2nd appellants are ordered to be set at liberty forthwith, if they are not required in any other case.