Anjala @ Kamatchi and Gopal vs State

D. Murugesan, J.—The appellants are A-1 and A-2 in S.C. No. 65 of 2005 on the file of the learned Additional District Sessions Judge,

Fast Track Court, Namakkal. They were found guilty for the offence 302 r/w 109 I.P.C. and sentenced to undergo life imprisonment and to pay a

fine of Rs. 1,000/- each in default to undergo simple imprisonment for two months each. They were also convicted for the offence u/s 201 I.P.C.

and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs. 500/- each in default to undergo simple imprisonment

for one month each. Hence they are before this Court by way of the present appeal. (The appellants herein after referred to as ""accused"")

The accused were put on trial on the following facts:

a) Both the accused are wife and husband. The accused have two female children already. On 13.8.2001 A1 gave birth a third female child. As

the accused were not in a poison to maintain the family, particularly already they had two female children, they decided to kill the third female child.

Hence, on the same day evening A-2 the husband brought (Erukkam Milk) Madar Poison and A-1 Administered the same to the child.

Immediately the child died and both the accused buried the child near their house. On 20.8.2001 at about 5.00 p.m. P.W. 2 by name

Subramanian, who was working as an Assistant in the Village Administrative Office, Chenbagamadevi, came to know that both the accused had

buried the child without intimating the same to the Village Administrative Officer. Therefore, he informed the same to the P.W. 1, the Village

Administrative Officer, who along with P.W. 2 lodged complaint at about 9.00 p.m. on 20.8.2001 to the Mallasamuthram Police Station. The

complaint was registered by P.W. 11, the Sub-Inspector of Police in Cr. No. 221 of 2001 u/s 174 of Cr.P.C. under Ex.P.12, F.I.R. Thereafter,

P.W. ll forwarded the copy of the F.I.R. to the Tahsildar for further enquiry. P.W. 11 also sent a copy of the F.I.R. to P.W. 12, the Inspector of

Police of the same police station for investigation. P.W. 12 took up the investigation and sent intimation (Ex.P.13) to P.W. 7 the Tahsildar,

Tiruchengode to exhume the body as the child was buried without intimation to the Village Administrative Officer. On receipt of the intimation

P.W. 1 came to the place where the deceased child was buried and exhumed the body of the deceased child and conducted the Inquest in the

presence of the witnesses and prepared the Inquest Report Ex.P.6. The Post Mortem was also conducted on the same place where the deceased

child was buried, by P.W.9. P.W. 9 found the following appearances on the body of the deceased at the Post-Mortem:

Body of a full term female body wrapped in clothes exhumed from about 1 � feet pit near a coconut tree and bathroom in the vicinity of the

house.

Length of body about 48 cms.

Head circumference could not be ascertained.

Body in advanced stage of purification. Sex could not be identified by the appearance of genitals - female. No obvious external injuries. Hyoid

cartilage could not be identified (dueto decomposition) Brain matter liquified and skull bone scrambled.

Stomach, liver, kidney & Lungs/-identified with difficulty and sent for Forensic Examination.

b) P.W. 9 sent the samples taken from stomach, lungs, liver, kidney and preservative to the Forensic Expert. P.W. 10, the Forensic Expert,

detected toxic principles of madar in liver and issued certificate Ex. P.9. After receiving the Forensic report (Ex.P.9), he finally opined that the

deceased should appear to have died 7-10 days prior to Autopsy due to Madar Poisoning. Thereafter, the further investigation was taken up by

the subsequent Inspector. He altered the offence into 302 and 201 I.P.C. from 174 Cr.P.C. and sent the altered report to the Court, examined the

witnesses, recorded their statements. The accused were surrendered before the Sessions Court, Namakkal. The Investigation Officer, after

completed his investigation filed Charge Sheet u/s 120B and 320 r/w 109 and 201 I.P.C. On 30.03.2004.

In order to substantiate the charges, prosecution has examined 12 witnesses and marked 15 exhibits. On behalf of the accused no witness was

examined.

When the accused were questioned u/s 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they totally

denied them as false. As if the learned Judge found the accused guilty of the offence, convicted and sentenced as stated earlier.

Both the accused have challenged the Judgment on very many grounds. Mr. S. Ashok Kumar, learned Senior Counsel appearing for the

appellants has submitted that the conviction is solely based on the circumstantial evidence, namely medical evidence and it is improper to convict

the accused on the basis of the medical evidence alone.

Mr. V.R. Balasubramanian, learned Additional Public Prosecutor, on the other hand submitted that the conviction is not solely on the basis of

the medical evidence but also on other materials viz., both the accused had not informed the death of the child to P.W. 1, the Village

Administrative Officer and they had buried the child in the nearby house without informing the Village Administrative Officer. Since there was a

suspicion, the Village Administrative Officer initially given the complaint for the offence u/s 174 Cr.P.C. Only when P.W. 10 Forensic Expert found

toxic prinicples of madar in liver, the fact that the child did not die naturally and the death was due to poisoning. As the child was murdered, the

offence was altered into 302 and 201 I.P.C. He would also submit that though P.W. 6, Village Health Nurse has spoken about the pregnancy of

A-1 and P.W. 3 who attended delivery of the child has spoken about the birth of the child at about 11.00 a.m. on 13.8.2001, strangely A-2, while

questioned u/s 313 Cr.P.C. has filed a statement denying even the conceivement of A1. The said fact of denial itself would show the concealment

of the offence. The accused having committed the murder of the deceased and buried the body.

We have carefully considered the rival submissions.

It is a case of infanticide, that too of a female child, which was born at 11.00 a.m. on 13.8.2001 and was buried on the evening of the same day.

The case is purely on circumstantial evidence. How far the prosecution has succeeded to prove the circumstances is a matter for consideration.

The fact that A-1 and A-2 are wife and husband and the same is not denied. Equally, both the accused have two female children by names,

Kalaivani and Priyanka. The evidence of P.W. 2, the Assistant of Village Administrative Officer shows that the birth or death of the child should be

intimated in the office of the Village Administrative Officer and shall be registered within seven days from the date of birth. As far as the birth of the

deceased at 11.00 a.m. on 13.8.2001, the prosecution has let in evidence through P.W. 6 and P.W. 3. P.W. 6 is the Village Health Nurse

working in the village in question over a period of 15 years. She has spoken about the conceivement of A-1. She has also spoken that she

examined A-l on 7.2.2001, and found A-1 was three months old pregnant and the said fact was recorded in the Mother and Child Welfare

Register. She has also spoken about the frequent check up and the treatment given to A-l on the third, forth, sixth and seventh months. She has

also spoken about her mentioning in the register as to the approximate date of birth viz., 12.08.2001. She came to know from one Thangammal

that A-1 gave birth to a female child on 13.8.2001. The prosecution therefore has proved that A-1 had conceived and a female child was born to

her on 13.08.2001.

P.W. 3 is a coolie at Pannakidathur. Though she has turned hostile, in cross examination she has admitted that A-1 gave birth to a female child

at 11.00 a.m. on 13.08.2001 and she attended delivery and handed over the child to A-1. She has also spoken that later on she came to know

that the child died at 7.00 p.m. on the same day. From the above evidence, the prosecution had proved the fact that A-1 was conceived, treated

by P.W. 6 and delivered to a female child at about 11.00 a.m. on 13.8.2001 as spoken to by P.W. 3. Surprisingly, while answering the question

u/s 313 Cr.P.C, A-2 has taken a stand that no female child was born to A-1 at 11.00 a.m. on 13.08.2001. A-2 had gone to the extent of even

denying the conceivement of his wife A-l obviously, to conceal the offence. Such a stand taken by the accused is a strong circumstance in support

of the prosecution case.

Secondly, as spoken to by P.Ws. 1 and 2, both the accused had concealed the death of the deceased and even without informing the Village

Administrative Officer, they had buried the child. The conduct of the accused would be one of the circumstance in support of the prosecution case.

Further, the child was buried nearby house without even intimating the villagers. The above conduct of the accused is also an additional

circumstance to the prosecution case.

Keeping the above in mind, the evidence of P.W. 9 and P.W. 10 should be considered. P.W. 9, the Doctor who had conducted the Post-

Mortem of the body at 11.45 a.m. On 21.08.2001 has opined that the death could have occurred seven to ten days prior to autopsy as the body

was in the advanced stage of purification. He identified the body as that of female only from genital organ. To find out the cause of death, samples

taken from 1) stomach, 2) Lungs 3) Liver, 4) kidney and 5) preservative were sent to Forensic examination. P.W. 10, the Forensic Expert

detected toxic principles of madar in liver and issued a certificate Ex.P.9. On the basis of the said certificate, P.W. 9, the Post-Mortem Doctor

opined that ""The deceased would appear to have died 7 -18 days prior to Autopsy due to Madar poisoning. ""There is no reason to discard the

opinion of P.W. 10, the Forensic Expert as to the presence of toxic principles of madar in the liver and the subsequent opinion of P.W. 9, the Post

Mortem Doctor, that the death would have occurred due to such poisoning. Both P.W. 9 and P.W. 10, in the course of their discharge of duties,

had conducted Post-Mortem and chemically tested the particles taken from the deceased. There is absolutely no evidence to falsify their evidence.

We are convinced with the fullness of the evidence of both the above witnesses.

Learned Senior counsel appearing for the appellants would submit that the conviction cannot be made solely on the basis of opinions of P.Ws.

9 and 10 as to the cause of death. The evidence of an expert is admissible u/s 45 of the Evidence Act. The Apex Court in AIR 1980 SC 531

[Murarilal v. State of M.P.] considered the evidentiary value of Experts and has held as follows:

We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence

of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science

of identification of handwriting, the approach, as we indicated earlier, should be one of caution; Reasons for the opinion must be carefully probed

and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for

the opinion are convincing and there is no reliable evidence throwing a doubt the uncorroborated testimony of an handwriting expert may be

accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have

said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this

Court are often flaunted.

The apex Court therefore has held that where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt even

uncorroborated testimony of an expert may be accepted.

From the discussions, we have found that apart from the evidence of experts viz., P.W. 9, the Post-Mortem Doctor and P.W. 10, the

Forensic Expert, the prosecution has also let in other corroborative circumstances viz., the evidence of P.W. 3, P.W. 6 to speak about the

pregnancy and delivery of A-1, the evidence of P.Ws. 1 and 2 that both the accused have concealed the death of the infant. Further, as we have

already noted a strong circumstance against the accused is that A-2 had gone to the extent of even denying the factum of conceivement of his wife

A-l and the consequential birth of the deceased infant, only to show their involvement in the occurrence. In view of the above evidence, not only

the opinion of the experts but also the other incriminating circumstances, the conviction and sentence require no interference as the prosecution has

established the case beyond reasonable doubt. It must be also be kept in mind that the accused have already blessed with two famale children and

they did not want e third female child viz, the deceased child, which was the cause for the commission of the offence.

A child, being supremely important national asset, should be nurtured. This is more so in case of female child. The commission of offence on a

female child, that too, on an infant of not even one day old, is a serious offence, requiring no lesser punishment than the life imprisonment.

It is unfortunate that for one reason or other, the practice of female infanticide still prevails despite the fact that gentle touch of a daughter and

her voice has soothing effect on the parents. The traditional practice of female infanticide by poisoning continues despite several legislations to

prevent the crime.

For all the above reasons the appeal is dismissed and the conviction and sentence imposed in S.C. No. 62 of 2005 by the learned Additional

District and Sessions Judge, Fast Track Court, Namakkal dated 30.06.2005 stands confirmed. The accused, who were enlarged on bail in M.P.

No. 2190 of 2006 in Crl. A. No. 650 of 2005 by this Court, are directed to surrender before the learned Additional District Sessions Judge, Fast

Track Court, Namakkal, forthwith. Learned Additional District Sessions Judge, Fast Track Court, Namakkal is also directed to take steps to

secure the accused for serving the remaining period of sentence. The bonds executed by both the accused stand canceled.