CHINNAKANNU Vs. STATE

JUDGEMENT

(1.) THE Criminal Appeal has arisen out of Judgment passed by the learned Additional District and Sessions Judge, Vellore (Fast Track Court) on 22.07.2003 in S.C. No. 205 of 2002, convicting the accused A1 and A2 for an offence under Section 498-A I.P.C. and sentencing them to undergo three years' rigorous imprisonment and also imposing a fine of Rs.5,000/- each in default to undergo three months' rigorous imprisonment.

(2.) THE case of the prosecution is as follows: P.W.1 Hamsa and P.W.3 Murugesan's daughter is deceased Indirani. THE appellants/accused A1 Chinnakannu and A2 Sampath son is Kumar. THE marriage between deceased Indirani and Kumar has been performed four years prior to this incident. During the lawful wedlock, the deceased has been blessed with two daughters. THE husband of the deceased Indirani was working in the Indian Army and was on camp at Rajasthan and Bangalore. During the relevant period, Kumar was on camp at Bangalore. THE deceased Indirani and her two children and the appellants/accused A1 Chinnakannu and A2 Sampath were residing at Kammavanpettai. On 24.03.2001 by 7 a.m., the deceased Indirani has constrained to administer the poison to her two daughters who were aged about two years and five months and herself consumed the poison. One Devendran, brother-in-law of deceased, another son of accused took all the three to the C.M.C. Hospital for treatment. On the way to the hospital, the five months old baby Janani died. THE two years old Lavanya and Indirani were admitted in the hospital. P.W.4 Sivagami, sister of the deceased, received the information and she intimated the same to P.W.1 and P.W.3, her parents. On 25.03.2001 at 1.30 p.m., P.W.19 Balakrishnan, Inspector received the information from the C.M.C. Hospital and went to enquire P.W.1 Hamsa, the mother of the deceased Indirani and recorded her complaint in Ex.P1 and then, he registered a case in Crime No.96 of 2001 under Sections 302, 307 and 309 I.P.C. THEn, he prepared a printed F.I.R. Ex.P20 and went to the place of occurrence and prepared Ex.P22 rough sketch and Ex.P5 observation mahazar. P.W.19 Inspector also seized M.O.1 an empty tin box and M.O.2 a 'paladai' under seizure mahazar Ex.P21, in the presence of witnesses P.W.6 Periasamy Udaiyar and P.W.7 Natarajan who were turned hostile. THEn, he conducted the inquest of the body of five months old baby Janani on 25.03.2001 and prepared Ex.P23 inquest report. After inquest, P.W.19 Inspector handed over the body to P.W.13 Head Constable Boopalan along with Ex.P24 requisition to conduct autopsy. P.W.18 Dr.Philomena received the said requisition and the dead body produced by P.W.13. She conducted autopsy and issued Ex.P19 post-mortem certificate and Ex.P27 Toxicology Report of five months old baby Janani. THE following injuries were noted in Ex.P19 post-mortem certificate: Appearances found at the post-mortem: External Appearance: Body lying in supine position arms close to sides, eyes closed. Mouth closed. Rigor mortis present in all the four limbs. No external injuries seen. Internal appearance: Opening of Thorax: No fracture. Hearty empty lungs congested c/s congestions present. Hyoid Bone intact. Opening of abdomen: Stomach congested: 20 ml fluid present. Smells of some insecticide poison. Liver congested 100 gms. Spleen congested. Kidneys congested. Intestine congested. Opening of head: No fracture. Brain congested. Parts of visceral organs and preservative sent for chemical analysis. Forensic science lab, vellore. Pending chemical analysis the deceased would appear to have died 53 to 55 hours prior to post-mortem examination. Tox-H-200/2001 dated 04.05.2001 P.M.No. 220/2001 Cr.No.96/2001 Stomach with contents - Detected Malathion Intestine with contents - Detected Malathion Liver and Kidney - Detected Malathion Preservations - Did not detect Malathion. Opinion as to cause of death - THE deceased would appear to have died of Malathion poisoning 53 to 55 hours prior post-mortem examination. After autopsy, the body of Janani was handed over to her relatives. On 29.03.2001 by 7.45 p.m., Indirani died. Since she died within 7 years from the date of marriage, the Revenue Divisional Officer P.W.17 Moorthy conducted an inquest on 30.03.2001 and prepared Ex.P18 inquest report of deceased Indirani and then, he gave a requisition Ex.P2 to conduct the autopsy. Along with the said requisition, P.W.15 Head Constable, Nedunchezhian, handed over the body to P.W.2 Dr.Bharani, to conduct autopsy. P.W.2 Dr.Bharani, conducted the autopsy and prepared Ex.P3 post-mortem certificate and Ex.P4 Toxicology Report of Indirani. THE following injuries were noted in Ex.P3 post-mortem certificate: External Injury: Internal Examination: Skull - No fracture. Brain- Normal. Hyoid Bone intact. Thorax - No fracture rib. Lungs congested. Heart size normal. Abdomen - Stomach empty. Liver, Spleen, Kidney - Normal size. Cut section congested. Uterus - Normal size. Cavity empty THE following viscera preserved for chemical analysis: 1. Stomach and its contents 2. Sample of intestine 3. Sample of liver and kidney 4. Sample and preservative. THE deceased would appear to have died about 20 hour prior to autopsy. Cause of death pending chemical analysis. 28.09.2001 Tox.H.208/2001 Cont. of Tox H.199 and 200/2001 Stomach did not detect Malathion. Intestine did not detect Malathion. Liver and Kidney - Detected Malathion - Malathion is an organophosp poison. Preservative did not detect Malathion. Final opinion: Deceased would appear to have died of poisons effect of organophosphorous insecticide. On 31.03.2001 at 3.45 p.m., two years old Lavanya died. P.W.16 Sub-Inspector of Police, Rajinikanth conducted an inquest on 02.04.2001 and prepared Ex.P17 inquest report of deceased Lavanya and then, he gave a requisition Ex.P8 to conduct the autopsy. Along with the said requisition, P.W.14 Shamsudeen Head Constable, handed over the body to P.W.8 Dr.Valarmathi to conduct autopsy. P.W.8 Dr.Valarmathi conducted the autopsy and prepared Ex.P9 post-mortem certificate and Ex.P10 Toxicology Report. THE following injuries were noted in Ex.P9 post-mortem certificate: Internal Injury: Skull - No boney injury. Membrane intact, Brain congested. Hyoid bone intact. Thorax: No rib fracture. Lungs reddishness and congested. Heart flabby. Abdomen: All the internal organs normal in size. C/S congested. Stomach had pale brown coloured fluid about 50 ml. Mucosa congested. No pelvis bone injury. Stomach and contents, intestine and contents, liver and kidney preservative, sent to chemical examination. Deceased could appear to have died about more than 60 hours prior to autopsy. Opinion pending for chemical analysis report. Tox H 199/2001 dt. 04.05.2001 In all the above three specimen (had) detected malathion poison. Deceased would appear to have died due to malathion (organophosph) poison about 60 hours prior to autopsy. After autopsy, the body of Lavanya was handed over to her relatives. P.W.20 Inspector, Pandiarajan altered the F.I.R. under Sections 498-A and 306 I.P.C. and prepared Ex.P25 Alteration Report and he sent the same to higher officials. P.W.20 arrested the accused A1 and A2 on 22.06.2001 at 8.00 a.m. and they were produced before the concerned Magistrate for judicial custody. P.W.21 Kali, Deputy Superintendent of Police took up the matter for further investigation. He has verified the investigation done by P.W.19 Balakrishnan and recorded the evidence of other witnesses, concluded the investigation and filed the charge sheet against the accused A1 and A2 under Sections 498-A and 306 I.P.C.

(3.) CHALLENGING the conviction and sentence passed by the trial Court, the learned appellants counsel would contend that there is no iota of evidence before the Court to show that A1 and A2 found guilty of offence under Section 498-A I.P.C. The neighbours, who were independent witnesses and Ramesh, the house owner have turned hostile. Even attestors of the observation mahazar and seizure mahazar have turned hostile. Except the oral evidence of P.Ws.1,3 and 4, there is no evidence available to prove the accused guilty of the offence under Section 498-A I.P.C. He further submitted that P.W.1 Hamsa, mother of Indirani is a complainant, who wrote the letter in emotion. In her complaint Ex.P1, she never adhered that deceased Indirani was subjected to cruelty by her in-laws. On the basis of Ex.P1, the first case has been registered under Section 302 I.P.C. on the death of five months old baby Janani. At the time of preferring complaint, registered a case under Section 307 I.P.C. The two year old Lavanya was under treatment and registered a case under Section 309 I.P.C. for attempting suicide. Admittedly, the deceased Indirani was not examined and she has not given any statement. There is no reason as how the investigating agency has altered the offence under Sections 498-A and 306 I.P.C., without any further evidence or material. So, the trial Court has failed to consider that aspect. Hence, he prayed for allowing the appeal.