IMPORTANT POINT
When death of deceased is not established to be homicidal and no evidence points to guilt of accused, he is entitled to benefit of doubt.

JUDGMENT

PRAFULLA C. PANT, J.

This appeal is directed against judgment and order dated 8.1.2008 passed by the High Court of Judicature at Madras in Criminal Appeal No. 337 of 2007 whereby said Court has dismissed the appeal of accused-appellant Selvaraj @ Chinnapaiyan, who was convicted by the trial court under Section 302 of Indian Penal Code, 1860 (IPC), and sentenced to undergo imprisonment for life and directed to pay fine of Rs.1,000/-, in default of payment of which he was directed to undergo rigorous imprisonment for a further period of three months.

2. Heard learned counsel for the parties and perused the papers on record.

3. Prosecution story, in brief, is that accused-appellant Selvaraj @ Chinnapaiyan is husband of PW-2 Selvi. He belongs to Vellala Gounder Community, and PW-2 Selvi belongs to Vanniayar Community. The two developed intimacy. This was not liked by Sundarammal (mother of Selvaraj). As such the accused-appellant Selvaraj and PW-2 Selvi left the village, and started living as husband and wife in Bangalore. From their relationship PW-2 Selvi conceived a baby. Sundarammal, when came to know of it, wanted to get the baby aborted but Selvi declined to do so. On this Sundarammal approached PW-4Chandra, a nurse, and sought her help to get the baby aborted. Selvaraj also joined his mother in asking Selvi to get the pregnancy terminated. This made Selvi apprehensive of threat to her life and that of her child in the womb. She went to her parents house and stayed there. After sometime, a Panchayat of the villagers was held and marriage was arranged between Selvaraj and Selvi whereafter the accused-appellant (Selvaraj) again left for Bangalore. While he was in Bangalore, Selvi delivered a female child on 27.1.2003 in her parental village about which the appellant and his mother were informed. On 28.2.2003, the appellant Selvaraj came to his village from Bangalore. On 3.3.2003 at about 8.00 p.m., according to the prosecution, the appellant entered inside the house of PW-2 Selvi, raised the volume of radio and closed the room. From there he went to thatched shed where the young baby was sleeping. On hearing the cries of the baby, PW-2 Selvi, PW-3 Rajammal (mother of Selvi) and PW-10 Chinapappa (sister of Selvi), who were standing outside the house, rushed to the thatched shed and saw Selvaraj administering paddy seeds in the mouth of the child, and strangulating him with a gunny wire. PW-2 Selvi shouted and attempted to save the child. All the three witnesses, i.e., Selvi (PW-2), Rajammal (PW-3) and Chinapappa (PW-10) took the child to PW-4 Chandra (a nurse). She (PW-4) advised above three eye witnesses to take the child to a doctor at Marandehalli, who, in turn, directed to take the child to Government hospital, Dharmapuri. The baby was admitted in the Government Hospital, Dharmapuri on 6.3.2003 at 10.00 a.m., but died at 5.25 p.m. on the same day.

4. A First Information Report (Ext. P-15) was lodged by PW-2 Selvi at 11.00 p.m. on the very day (6.3.2003) at Police Station Marandehalli, which was registered as Crime No. 110 of 2003 relating to offence punishable under Section 302 IPC against the two accused, namely, Selvaraj @ Chinnapaiyan and his mother Sundarammal. Crime was investigated by PW-13 Inspector Thangavel, who interrogated the witnesses and took the body of the female child in his possession, sealed it and sent for autopsy. PW-1 Dr. Balasubramaniam conducted post mortem examination and prepared the autopsy report (Ext. P-4). He observed a linear blackish contusion of size 15mm x 1mm extending from left to right side of neck, hyoid bone found intact, ribs were intact, no foreign body found in the lungs, liver congested, stomach empty, bladder empty. PW-1 Dr. Balasubramaniam preserved a piece of skin from neck for forensic analysis and also took pieces of intestine, liver and kidney and preserved the same for forensic analysis. He recorded opinion on 7.3.2003 (the day on which autopsy was done) that “The d