Kannammal vs State

M. Karpagavinayagam, J.—Originally, there were two accused. Accused No. 1 is the wife. Accused No. 2 is her husband. Accused No. 2

was acquitted and accused No. 1 alone was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code. For the

offence u/s 302 of the Indian Penal Code, accused No. 1 was sentenced to undergo imprisonment for life and for the offence u/s 201 of the Indian

Penal Code, she was sentenced to undergo two years rigorous imprisonment. Challenging the said conviction and sentence, accused No. 1 has

filed this appeal.

The facts in brief, leading to the conviction, are as follows:-

(a) The deceased in this case is the grand-daughter of the appellant/accused No. 1. Accused No. 2, who was acquitted, is her husband.

According to the prosecution, accused No. 1 with the help of accused No. 2 administered poison by pouring Erukkampal into the mouth of the

new born female child and caused her death. Thereafter, in order to cause disappearance of the evidence, buried the body in the backyard of her

house.

(b) To prove this accusation, on the side of the prosecution, P.Ws.1 to 8 were examined and Exs.P.1 to P.11 were filed. No material objects

were marked.

(c) P.W.2 is the daughter-in-law of accused Nos. 1 and 2. Earlier, P.W.2 and her husband Subramani (son of the accused) gave birth to two

female children. They were aged about five years and four years. On 28.10.1992, P.W.2, the daughter-in-law of accused Nos. 1 and 2 was taken

to the hospital, as she was in the advance stage of pregnancy and at about 4.00 p.m., a female child was born. At 7.00 p.m., she was discharged

and both P.W.2 and her child were brought to their house. Since P.W.2 was already having two female children, accused Nos. 1 and 2 decided to

kill the new born baby by administering poison. On 29.10.1992 early morning, accused No. 1 administered poison (Erukkampal) mixing with

sugar water to the child and within a few minutes, the new born baby died. Thereafter, accused Nos. 1 and 2 in the presence of villagers buried the

dead body of the child at the backyard of their house.

(d) Four days later, P.W.1, the Village Administrative Officer of Kolathur, on the instructions of the District Collector, supervised the villages and

enquired about the birth of female children born recently, in order to take action for preventing female infanticide. When he came to know that

P.W.2 had given birth to a new female baby, he went to her Village, namely, Paruthikaadu and enquired about the welfare of the child, who was

recently born. At that time, accused No. 1 was available.

(e) On interrogation, accused No. 1 gave a statement to P.W.1 in the nature of extra-judicial confession that she only killed the new born female

baby by administering poison, since her son was already having two female children and with the help of accused No. 2, buried the body at the

backyard of their house. On receipt of such statement, the same was reduced into writing and P.W.1 went to Kolathur Police Station and gave

Ex.P.1, the statement along with his report Ex.P.2 to P.W.6, the Head Constable. A complaint was registered for the offences under Sections 302

and 201 of the Indian Penal Code by P.W.6, the Head Constable against accused Nos. 1 and 2. P.W.7, the Inspector of Police on receipt of the

said complaint, went to the scene of occurrence and prepared rough sketch and observation Mahazar and also examined the witnesses.

(f) P.W.1 informed the same to the Tahsildar - P.W.5. The Tahsildar in the same evening came to the scene of occurrence and examined witnesses

and recorded their statements. The accused were also examined. P.W.5 also conducted inquest by examining witnesses as well as accused Nos. 1

and 2. The inquest report was marked as Ex.P.9. Then, P.W.4, the Doctor conducted post-mortem and sent the viscera for chemical analysis and

ultimately after receipt of the Chemical Examiner''s report - Ex.P.7, gave the post-mortem certificate Ex.P.6 giving final opinion that the child would

have died due to Erukkampal poison. In the meantime, accused Nos. 1 and 2 were arrested.

(g) After completing the investigation, charge sheet was filed by P.W.8, the Inspector of Police, who is successor to P.W.7, for offences

punishable under Sections 302 and 201 of the Indian Penal Code against both the accused.

(h) The Trial Court after completion of trial, questioned accused Nos. 1 and 2 u/s 313 Code of Criminal Procedure with reference to the

incriminating materials. The accused stated that they were innocent.

(i) On consideration of the materials placed before court, the Trial Court, though acquitted accused No. 2 for want of sufficient evidence, would

choose to convict accused No. 1 alone for the offences punishable under Sections 302 and 201 of the Indian Penal Code. Hence , this appeal by

the appellant (accused No. 1).

Mr. K.N. Basha, learned counsel appearing for the appellant, would take us though the entire evidence and contend that the entire case is based

upon only circumstantial evidence and the only circumstance available is Ex.P.1 - the extra judicial confession and it also suffers from various

infirmities and as such, there are no sufficient materials to convict the appellant and the appellant is entitled to be acquitted on that aspect.

We have heard the learned Additional Public Prosecutor and also gone through the records.

We also went through the records. There is no eye witness to the occurrence. The entire case wound hinge upon the circumstantial evidence.

The only circumstance relied upon by the prosecution is the extra judicial confession given by accused No. 1 to P.W.1, the Village Administrative

Officer. Yet another incidental circumstance sought to be relied upon is the statement of accused No. 1 given to P.W.5, the Tahsildar.

According to the prosecution, accused No. 1, since she felt that their family may not be in a position to bear the expenses for a female child,

who was born as the third child for his son, decided to kill the child. In pursuance of the said design, accused No. 1 administered Erukkampal

poison by pouring the same into the mouth of the child and killed her and with the help of accused No. 2, buried the child in the backyard of the

house. This was taken place on 29.10.1992.

It is not the case of the prosecution that accused No. 1 immediately after the occurrence voluntarily went to some person and gave extra-judicial

confession. On the other hand, after five days, i.e. on 3.11.1992, P.W.1, the Village Administrative Officer on the instructions given by the District

Collector, went to various Villages to enquire about the recent birth of the female children. In that context, P.W.1 came to the Village of accused

No. 1 and enquired accused No. 1 about the female child, who was recently born in P.W.3''s Nursing Home. At that point of time, accused No. 1

gave a statement implicating herself as well as accused No. 2 to the effect that the child was killed by her and with the help of accused No. 2, the

body was buried. On the statement of accused No. 1, the complaint was registered by P.W.6 and at the request of P.W.1, P.W.5 came and

conducted inquest. During the course of inquest, admittedly, accused No. 1 was also examined.

Though separate statement had been obtained from accused No. 1 and though it is stated in the inquest report that P.W.5 obtained a statement

from accused No. 1, the prosecution has not chosen to mark the said document for the purpose of corroborating Ex.P.1. To make the matter

worse, P.W.5 did not even choose to refer to the contents of the statement in the chief examination, as mentioned in the inquest report. Therefore

there is no other evidence except the statement given by accused No. 1 to P.W.1.

As correctly pointed out by the learned counsel for the appellant, the only statement which is shown as a circumstance against the accused,

recorded by P.W.1 from accused No. 1, was not immediately after the occurrence was over but only five days later. Further, it cannot be said that

it is a voluntary extra-judicial confession.

Even according to the prosecution, P.W.1, the Village Administrative Officer on the direction of the District Collector went to the house of

accused No. 1, enquired her and obtained the statement. Admittedly, P.W.1 is a total stranger to accused No. 1. A reading of Ex.P.1 also would

not indicate that accused No. 1 realised her mistake and gave the extra judicial confession voluntarily.

It is true that Ex.P.8, final opinion has been given by P.W.4, the Doctor, on the basis of the Chemical Examiner''s report Ex.P.7 that the cause

of death of the child was due to poisoning. But that may not be a ground to hold that accused No. 1 alone had administered poison. As a matter of

fact, along with accused No. 1, accused No. 2 and the mother of P.W.2 were also available in the house. In such a situation, we cannot fix

accused No. 1 alone, merely on the basis of the statement given by her to P.W.1 which does not inspire the confidence of this court.

In brief, we could observe that Ex.P.1, the statement given by accused No. 1 to P.W.1, cannot be said to be a credible document, especially

when the same was recorded by P.W.1, five days later. Therefore, the conviction and sentence imposed upon the appellant are liable to be set

aside and accordingly, the same are set aside and accused No. 1 is acquitted of the charges. Thus, and the appeal is allowed. The bail bond

executed by the appellant shall stand cancelled.