Madras High Court
E.Maheswari vs The State Rep. By on 3 October, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.10.2018
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Criminal Appeal (MD) No.93 of 2008
E.Maheswari : Appellant/Accused
Vs.
The State rep. by
the Inspector of Police,
Cumbum South Police Station,
Cumbum, Theni District.
(In Crime No.88 of 2005) : Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of Criminal
Procedure, against the order of conviction and sentence passed in S.C.No.19
of 2006, dated 25.01.2008 on the file of the learned Principal District and
Sessions Judge, Theni.
!For Appellant : Mr.Sulthan Basha
for M/s.Ajmal Associates
^For Respondent : Mr.R.Anandharaj,
Additional Public Prosecutor
********
:JUDGMENT
This appeal has been filed by the appellant/accused as against the conviction and sentence, dated 25.01.2008, made in S.C.No.19 of 2006, by the learned Principal District and Sessions Judge, Theni.
2. The appellant/Accused stood convicted and sentenced to undergo imprisonment as detailed hereunder:
Conviction U/s.
Sentence Fine amount 315 IPC To undergo five years rigorous imprisonment To pay a fine of Rs.1,000/-, in default, to undergo three months simple imprisonment.
201 IPC To undergo three years rigorous imprisonment
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(Both the sentences were directed to run concurrently.)
3. The brief case of the prosecution is as follows:
(i) The accused developed illegal connection, as a result she has conceived and delivered a baby in the Government Hospital, Cumbum. The child was delivered on 27.03.2005 at 3.55 a.m. P.W.1 - Dr.Amuthili treated the child at 3.55 a.m. P.W.2 - Revathi, nurse of the concerned hospital, has also attended the accused and the child. P.W.3 - Anusia was aware of the above fact and P.W.4 - Subramani, a sweeper, was also aware of the fact that the accused has delivered a child in the hospital. After the child was born, P.W.2 and others found that the accused and child were missing from the hospital. On the same day, P.W.1 received information that the child was found dead covered with clothes in the hospital campus. Immediately, she sent a death intimation notice Ex.P.1 to the police station. P.W.5 - Selvam and P.W.6 - Nandagopal also seen the dead body of the child in the hospital campus. P.W.11 - Dr.Syed Sulthan Ibrahim is the Medical Officer attached to the Government Hospital, Cumbum, who conducted autopsy over the dead body of the child and issued Ex.P.5 - postmortem certificate. After verifying the forensic report, he found that the child died due to asphyxia. His opinion is Ex.P.7. P.W.16 - Dr.Manimohan and P.W.18 - Vasantha also employees of the hospital have attended the accused and the child. P.W.19 - Dr.Nadarajan, Forensic Medical Officer in the presence of P.W.17 - Tahsildar, exhumed the dead body to collect the femur and sent the same for D.N.A. Analysis. P.W.20, Deputy Director, Forensic Department examined the femur of the child and the blood samples collected from the accused and issued D.N.A. report - Ex.P.23 and informed that the accused is the biological mother of the child.
(ii) P.W.14, Sub-Inspector of Police based on the Death Intimation Report - Ex.P.1, registered a case in Crime No.88 of 2005 under Section 174 Cr.P.C. The F.I.R. is Ex.P.11. He forwarded the F.I.R. to the higher officials for investigation. P.W.21 is the Investigating Officer, who conducted investigation and prepared an observation mahazar (Ex.P.4) and rough sketch (Ex.P.25). He has also examined the witnesses. After his transfer, P.W.22 continued the investigation and on completion of investigation, he has laid a final report as against the accused.
(iii) Based on the above materials, the trial Court framed charges under Sections 315 and 302 r/w 201 I.P.C. against the accused. The accused denied the same. In order to prove the charges, on the side of the prosecution, P.W.1 to P.W.22 were examined and Exs.P.1 to P.28 and M.Os.1 and 2 were marked.
(iv) When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, she denied her complicity in the crime and pleaded innocence. However, she neither choose to examine any witnesses nor to mark any document.
(v) The trial Court, after considering the oral and documentary evidence, has found the appellant guilty and accordingly, convicted and sentenced her, as stated supra. Aggrieved over the said conviction and sentence, the appellant/Accused has come up with this appeal.
4. The learned counsel for the appellant would submit that the prosecution has not proved the case beyond reasonable doubts. There is no evidence available on record to show that the accused did any act to cause the death of the accused. Hence, the charges under Section 315 and 201 is not attracted. Hence, the learned counsel prays for allowing the appeal.
5. The learned Additional Public Prosecutor appearing for the respondent would submit that the evidence of the medical officers and staff nurses clearly indicate that the accused had delivered a child in the hospital. After some time, she was missing with the child and the child was found dead in the hospital on the same day and postmortem report clearly reveals that the death is due to asphyxia and the D.N.A. Test also proved the paternity of the child and hence, the prosecution has proved the guilt of the accused beyond all reasonable doubts. Hence, he prays for dismissal of the appeal.
6. In the light of the above submissions, now, it has to be analysed whether the prosecution has proved the guilt of the accused beyond all reasonable doubts?
8. The evidence of P.Ws.1, 2, 16 and 18 have to be carefully seen. They in uniform voice asserted that the accused was admitted in the hospital for child birth and on 27.03.2005 she delivered a child in the hospital. In fact, P.W.1 had attended the accused and the child. Her evidence is also to the effect that the child was normal after delivery, thereafter, after sometime she left the hospital with the child without informing the same and at 5.00 p.m. on the same day the male child was found dead in the hospital campus, which was recovered immediately. P.W.1 has given the death intimation - Ex.P.1 to the police. Postmortem doctor's evidence would clearly show that the child died due to asphyxia. It is to be noted that the evidence of P.Ws.1, 2, 16 and 18, medical officers and nurses clearly establishes the fact that the child was normal.
9.Further, the child was found dead in the hospital campus and admittedly the accused was missing from the hospital. There was no explanation as to why the accused was missing from the hospital along with the child and why the child was found dead in the hospital campus. These are the facts exclusively within the knowledge of the accused who delivered the baby. Since there was no explanation on these facts which are exclusively within the knowledge of the accused a presumption can very well be drawn against the accused under Section 106 of the Evidence Act.
10.The prosecution has candidly established the fact that the child was found in the Government Hospital, Cumbum and also established the paternity of the child and in fact the body of the child was exhumed in the presence of the Tahsildar and the femur bones were collected for D.N.A. analysis and blood samples of the accused were also collected legally. On analysis, the expert submitted a report - Ex.P.21. The D.N.A. Test accurately fixed the paternity of the child and P.W.20 examined before the Court also clearly given evidence to the effect that only the accused is the biological mother of the child. From these facts, in the absence of any evidence on the side of the accused, this Court is of the view that it is only the accused, who abandoned the child born to her and caused the death of the child by leaving the child, which was born a few hours earlier, to expose to sun and vagaries of nature in the thorny bushes and the accused had intention to cause disappearance or cause the death of the child. In such circumstances, the act of the accused is certainly not in good faith.
11. The medical evidence clearly establishes asphyxia. The accused also failed to explain what has transpired between the time when she left the hospital and the child was thrown in the bushes. Further, the lower Court's finding that Offence under Section 302 I.P.C. has not been made out also cannot be varied for the reason that asphyxia may be possible due to thick clothes surrounded the child. Therefore, the finding of the trial Court convicting the accused under Sections 315 and 201 I.P.C. is well founded and does not warrants interference.
12.However, as per prosecution case, the accused had delivered a child in an extra marital life and in order to avoid the stigma in the society and to screen the child's birth she has done such an an act. Further, she was subjected to the exploitation in illegal connection by some third party and as a victim of circumstances, in order to escape from the stigma which may be focussed on her life she did such act. Now, it is the contention of the learned counsel appearing for the appellant that she has other children to maintain and the other children entirely depending on the her. Considering these aspects and the mitigating circumstances, I am of the view that the punishment imposed for offence under Section 315 I.P.C. may be reduced to three years from five years, which will meet the ends of justice.
13.Accordingly, this Criminal Appeal is party allowed and while confirming the conviction under Sections 315 and 201 I.P.C. and the sentence of 3 years rigorous imprisonment under Section 201 I.P.C., imposed by the learned Principal District and Sessions Judge, Theni, in S.C.No.19 of 2006, dated 25.01.2008, the sentence of 5 years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment imposed for the offence under Section 315 I.P.C., is hereby, modified to 3 years rigorous imprisonment with a fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. Both the sentences shall run concurrently. Since the respondent police has already secured the accused viz., E.Maheswari, Female, W/o.Easwaran, Nagamaniammal School Street, Cumbum, Theni District, the appellant/accused is committed to The Special Prison for Women, Madurai undergo the modified period of sentence. The respondent police is directed to surrender the appellant/accused with the committal warrant and a copy of this order before the Superintendent, The Special Prison for Women, Madurai. The sentence already undergone by the accused is ordered to be set off under Section 428 of the Code of Criminal Procedure. The bail bonds executed by the appellant/ accused shall stand cancelled.
To
1.The Principal District and Sessions Judge, Theni.
2.The Superintendent, Special Prison for Women, Madurai.
3.The Inspector of Police, Cumbum South Police Station, Theni District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Copy to The Section Officer, Criminal Record Section, Madurai Bench of Madras High Court, Madurai.
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