Madras High Court
Vasanthi vs State on 8 November, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.267 of 2005 and CRIMINAL APPEAL (MD).No.622 of 2005 Vasanthi ... Appellant in CRL.A(MD).No.267 of 2005 and respondent in CRL.A(MD).No.622 of 2005 Vs. State, rep by Inspector of Police, Chinnamanoor Police Station, Theni District. ... Respondent in CRL.A(MD).No.267 of 2005 and appellant in CRL.A(MD).No.622 of 2005 PRAYER in CRL.A(MD).No.267 of 2005 Appeal is filed under Section 389(1) r/w 439 of the Code of Criminal Procedure to call for the records in S.C.No.400 of 2004, on the file of the Sessions Judge, Magalir, Neethimandram, Madurai and set aside the conviction dated 27.05.2005. PRAYER in CRL.A(MD).No.622 of 2005 Appeal is filed under Section 377 of the Code of Criminal Procedure against the Judgment dated 27.05.2005 made in S.C.No.400 of 2004, on the file of the Sessions Judge, Magalir, Neethimandram, Madurai. !For Appellant in CRL.A(MD).No.267 of 2005 and Respondent in CRL.A(MD).No.622 of 2005 ... Mr.T.R.Subramanian Legal Aid Counsel ^For Respondent in CRL.A(MD).No.267 of 2005 and appellant in CRL.A(MD).No.622 of 2005 ... Mr.K.S.Duraipandian Additional Public Prosecutor :COMMON JUDGMENT
*********************** [Judgment of the Court was delivered by S.NAGAMUTHU, J.] There is an old saying in Tamil; "Not everything that is white is milk". The juice of "Madar Plant" [calotropis - vUf;F;] is as white as "Mother's Milk". But, "Madar" cannot be like a "mother". It is heart rending, in the instant case, instead of "Mother's Milk", "Madar Juice" was fed to an infant, for having been born as a female. She breathed her last in about 48 hours of her descending in this world. This is not an isolated incident of female infanticide. There are reports that this practice was prevalent in some areas of this State. Poverty, ignorance, cost of dowry etc., are obviously the main driving factors for this heinous crime. The Government, NGOs and several other organizations have taken several steps to eradicate this evil practice. But, the instant case shows that the merciless practice still persists. It happened in a village near Usilampatti in Theni District, on 02.08.2003. The Appellant is the poor mother of the unfortunate child.
2. The appellant - Mrs.Vasanthi in Crl.A.(MD).No.267 of 2005 is the sole accused in S.C.No.400 of 2004, on the file of the learned Sessions Judge, Magalir, Neethimandram, Madurai. She stood charged for offences under Sections 302 and 201 of the Indian Penal Code. The Trial Court, by Judgment dated 27.05.2005, convicted her under both the charges. For the offence, under Section 302 of the Indian Penal Code, strangely and shockingly, the Trial Court sentenced her to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.500/- in default, to undergo rigorous imprisonment for one year and for the offence, under Section 201 of the Indian Penal Code, the Trial Court sentenced her to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500, in default to undergo Rigorous Imprisonment for three months. Challenging the said conviction and sentence, the accused is before this Court with CRL.A(MD).No.267 of 2005.
3. Aggrieved over the quantum of sentence, the State has come up with CRL.A(MD).No.622 of 2005. That is how, both the Criminal Appeals are before this Division Bench for disposal.
4. The case of the prosecution, in brief, is as follows:-
4.1. The accused delivered a female child in Primary Health Centre at Seelaiyampatti Village, Theni District, on 31.07.2003. PW-2 was then a Village Health Nurse in the said Primary Health Centre. She assisted the accused for natural delivery of the child. The accused was not happy with the child, as it happened to be a female child, since already she had another female child. On 31.07.2003, at 07.30 PM, the husband of the accused took her and the child to his house. PW-2 visited the house of the accused on 01.08.2003 and 02.08.2003 and found the child alive.
4.2. On 04.08.2003, at 03.00 PM, PW-1, the Deputy Director, Health Services, Theni, received a Telephonic Message that the above child was killed by giving Madar Poison. PW-1 directed the Regional Medical Officer, Dr.Vijayarani - PW-3 and one Dr.Premkumari and Dr.Santhakumari - PW-4 to visit the said village to find out the truth. Accordingly, they visited the village, made enquiries with the family members of the accused as well as the others and informed PW-1 that the child was killed by administering Madar Poison. It was also informed that the dead body had been buried. Based on the said report, PW-1 preferred a complaint on 05.08.2003, at 01.30 PM, to the police. PW-12, the then Sub - Inspector of Police, attached to Chinnamanoor Police Station, Theni District, received the said complaint under EX-P1 and registered a case in Crime No.210 of 2003 under Section 315 of the Indian Penal Code. EX-P11 is the First Information Report. He forwarded EX-P1 and EX-P11 to the Jurisdictional Magistrate and handed over the case diary for investigation to PW-13, the then Inspector of Police.
4.3. Taking up the case for investigation, PW-13 proceeded to the place of occurrence at 03.30 PM. He prepared an Observation Mahazer at the place where the body of the child had been buried, in the presence of PW-6 and another witness. EX-P2 is the Observation Mahazer. Then, he prepared EX-P12, a Rough Sketch, showing the place. Then, he recorded the statements of PW-1 and PW-6 and one Rejendiran. Then, he made a request to the Tahsildar/Executive Magistrate, Theni, for conducting inquest on the body of the deceased, by exhuming the body.
On 06.08.2003, he examined PW-1 to PW-5 and few more witnesses and recorded their statements. On 06.08.2003, PW-11, the then Tahsildar, Theni, exhumed the body in the presence of PW-13 and PW-9, Dr.Karunakaran and conducted inquest. PW-9 conducted autopsy on the body of the deceased and he found the following injuries:-
"The Body was foul/smelling and decomposed; eyes closed. Body length 44 cms Head circumferene is 38 cms. Peeling of skin seen over the face and all over the body abdomen bloated face bloated. The female child confirmed by the genital organs. Both upper limbs fixed at the elbow. Both lower limbs fixed at the knee. Rigor Mortes passed off in all the libs. Umbilier card seen tied about 5 cm length.
Internal examination: oral cauity is empty. Tongue with in the oral cauity. No foreign body seen in the oral cauity. On opening the neck: Neck muscles not congested. Hyoid bone intact. On opening the chest: Ribs intact. Both lungs pale and collapsed Trachea: Pale: Heart: All chambers empty. Opening the abdomen: Liver congested kidneys congested. Bladder empty: intestires empty. Stomach contains about 5 grms of borocurish; substane muscosa congested. Opening of the skull: No fracture of the skull. Fonanals normal. Brain substances liquified."
4.4. He preserved stomach and its contents, intestine and contents, liver, kidney, earth below the body and earth above the body. In the stomach, he found a brownish substance. He preserved the same by adding preservative and then forwarded all these materials to the Government Forensic Lab, Madurai, for examination.
4.5. PW-10, Mrs.Gomathy, was a Scientific Officer at the Regional Forensic Sciences Department, Madurai. She examined the above parts of the deceased and submitted report - EX-P4. On such chemical examination, she found the following:-
1. Stomach and contents; Detected the toxic principles of Madar
2. Intestine and contents: Detected the toxic principles of Madar.
3. Liver: Detected the toxic principles of Madar.
4. Kidney: Detected the toxic principles of Madar.
5. Earth below the body: Did not detect the toxic principles of Madar.
6.Earth above the body: Did not detect the toxic principles of Madar.
7. Preservative: Did not detect the toxic principles of Madar." 4.6. Then, PW-13 handed over the case diary to his successor Mr.Palaniappan. Taking up the case for further investigation, PW-14 examined the doctors, who conducted and recorded their statements. He collected postmortem report and the opinion of the Chemical Analyst. On 31.12.2003, at 11.00 PM, he arrested the accused in the presence of PW-6 and another witness. She gave a confession and the same was reduced into writing. She was, thereafter, sent to Court for judicial remand. On completing the investigation, PW-14 laid charge sheet on 09.01.2004 against the accused for offences under Sections 302 and 201 of the Indian Penal Code.
5. Based on the materials available on record, the Trial Court framed charges under Sections 302 and 201 of the Indian Penal Code. The accused denied the charges, and therefore, she was put on trial. During the trial, on the side of the prosecution as many as 14 witnesses were examined and 12 documents were exhibited. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against the accused, she denied the same as false. According to her, the child died on the night of 31.07.2003 itself and the dead body was buried thereafter.
She has further stated that she did not know the cause of death. However, she believed that it was a natural death. On her side, one witness, by name Mariappan, was examined as DW-1. In his evidence, he has stated that the accused was arrested from his quarry by the police.
6. Having considered all the above evidences, the Trial Court found her guilty under both the charges, and accordingly, punished her. That is how, she is before this Court with Crl.A.(MD).No.267 of 2005. As we have already stated, strangely and shockingly, the Trial Court imposed a sentence of only three years Rigorous Imprisonment for offence under Section 302 of the Indian Penal Code and quite naturally, the State was aggrieved by the same. That is how, the State is now before this Court with Crl.A.(MD).No.622 of 2005, seeking enhancement of the punishment imposed by the Trial Court.
7. We have heard Mr.T.R.Subramanian, appointed as Legal Aid Counsel and the learned Additional Public Prosecutor, representing the State and we have also perused the records carefully.
8. Admittedly, this is a case, based on circumstantial evidence. The circumstances projected by the prosecution are that the deceased child was delivered on 31.07.2003 in the presence of PW-4 and the child was taken alive to the house of the accused on the same day. On 01.08.2003 and 02.08.2003, the child was found alive. Thereafter, the child would have died. From the report of the Chemical Analyst, it is crystal clear that since Madar Poison was administered to the child, the female child died. Therefore, according to the prosecution, the Madar Poison would have been administered by the accused, and thus, she is guilty under both charges. The learned counsel for the accused would, however, submit that there is no evidence at all to connect the accused with the alleged murder of the child.
9. We have considered the above rival submissions. Admittedly, the child was born on 31.07.2003. From the evidence of PW-2, it has been clearly established that the child was alive till 02.08.2003. It has also been very clearly established by the prosecution, through Chemical Analyst Expert, PW-10, that stomach contained toxic principles of Madar contents and other parts of the body were found to have contained Madar Poison. Absolutely, it is not possible for such an infant, even by accident, to consume Madar Poison. Undoubtedly, the Madar Poison should have been administered to the child and the death of the child was by homicidal violence. The person, who administered the Madar Poison, certainly, had intention to cause the death of the child, and therefore, the said person is liable to be punished under Section 302 of the Indian Penal Code.
10. Now, the question is whether it was this accused, who administered Madar Poison to the child. Absolutely, there is no eye - witness to speak about the same. Even by means of circumstantial evidence, the prosecution has failed to establish the same. It is not as though the accused alone was aggrieved that the child was a female child. There were other family members, like, husband of the accused, her father-in-law, mother-in-law, brothers and sisters. All were living together. PW-2 has stated, in her evidence, that one sister, viz., Parimala was there and she gave milk to the child. On 01.08.2003, PW-2 found the husband of the accused there at the house. At that time, the accused was sleeping on a mat, whereas, the child was sleeping in a cradle. Therefore, it is absolutely necessary for the prosecution to prove that it was this accused, who alone administered Madar Poison to the child. The others like, husband and other family members were also aggrieved that the child was a female child. PW-1 has admitted in his evidence that this kind of foolish practice of killing female child was in vogue in a particular area. The possibility of anyone or the other members would have administered Madar Poison to the child should be ruled out. The prosecution has failed to do the same. Had it been the case that the accused alone was in the house and she was having exclusive custody of the child and there was no possibility for any one else to administer the Madar Poison, then, it could have been possible for this Court to hold that it was this accused, who administered Madar Poison to the child.
11. It is the settled law that in a case based on circumstantial evidence, it is absolutely necessary for the prosecution not only to prove the circumstances, beyond reasonable doubts, but also the proved circumstances should form a complete chain unerringly pointing to the guilt of the accused. Apart from the above, it is also essential that there should not be any other alternative hypothesis, which is inconsistent with the guilt of the accused. In the instant case, there are other alternative hypothesis, like any other aggrieved person in the family, as per the custom prevailing in the community would have administered Madar Poison. This possibility has not been ruled out by the prosecution. Therefore, it cannot be safely held that the Madar Poison was administered by this accused.
12. In view of the above position, we are constrained to hold that the prosecution has failed to prove the case beyond reasonable doubts, and therefore, the appellant is entitled for acquittal.
13. Now, turning to CRL.A.(MD).No.622 of 2005, filed by the State, the discussion has become academic, in view of the fact that we are inclined to acquit the accused. However, we wish to express our displeasure over the quantum of punishment imposed by the Trial Court. Under Section 302 of the Indian Penal Code, the Court has got only two options in the matter of imposing punishment, i.e., it can either impose the extreme penalty of death sentence or life imprisonment. At no cost, the Court can impose any substantive sentence less than life imprisonment. Section 302 of the Indian Penal Code does not empower or enable any Court to impose a lesser sentence than life sentence.
14. The learned counsel for the appellant would submit that out of sympathy, the Trial Court has imposed Rigorous Imprisonment only for a period of three years for offence under Section 302 of the Indian Penal Code. Sympathy cannot be allowed to override the statutory mandate. The system is not ruled by men, but, by rule of law. The rule of law shall always prevail and the same cannot be overridden by other extraneous considerations, like sympathy, emotion etc., The Courts of law are bound by the mandate of statues and the rule of law. Undoubtedly, for an offence under Section 302 of the Indian Penal Code, a minimum punishment, which could be imposed, is only life imprisonment. Thus, the sentence of three years Rigorous Imprisonment imposed by the Trial Court for offence under Section 302 of the Indian Penal Code is illegal. However, in this case, the Criminal Appeal filed by the State for enhancement of sentence deserves to be dismissed, because, we are inclined to acquit the accused.
15. In the result, Crl.A.(MD).No.267 of 2005 filed by the accused is allowed and the conviction and sentence imposed on the appellant are set aside and she is acquitted of the charges. Consequently, Crl.A.(MD).No.622 of 2005 is dismissed.
NB To
1.The Inspector of Police, Chinnamanoor Police Station, Theni District.
2.The Sessions Judge, Magalir, Neehimandram, Madurai.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.