IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On	07.06.2023
Pronounced On	05.09.2023

CORAM

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

Crl.A.No.161 of 2018

N.Pannerselvam S/o.Natesan          … Appellant

vs.

The State represented by,

The Inspector of Police, R2 Kodambakkam Police Station, Chennai.

Crime No.548 of 2009.                                                                 … Respondent

PRAYER: Criminal Appeal Petition filed under Section  374(2) of the Code of Criminal Procedure, to call for the records in S.C.No.67 of 2011 on the file of Sessions Judge, Mahila Court, Chennai (Mahallir Neethimandram, Chennai) set aside the judgment and conviction imposed in S.C.No.67 of 2011.

For Petitioners          : Mr.R.Vivekananthan

For Respondents       : Mr.L.Baskaran

Government Advocate (Crl. Side)

*****

J U D G M E N T

It is a case of attempt to filicide.

2. This Criminal Appeal has been filed seeking to quash the order made in C.No.67 of 2011 on the file of Sessions Judge, Mahila Court, Chennai (Mahallir Neethimandram, Chennai).
3. The convicted 1^st accused is the appellant herein. The respondent/Police filed a charge sheet against the present appellant along with his wife and sister for alleged offences under Sections 498A and 307 I.P.C and as against the other two accused under Section 498A I.P.C only.
4. The case of the prosecution is that complainant Lurthumary is the wife of A1. The A2 and A3 accused are the sister-in-laws of the complainant. During the year 2002, when Lurthumary was working in Sastri Bhavan, the A1 and the complainant were in love with each other and got married and they got two sons viz., Mr.X and Mr.Y. The elder son is fair in complexion and the younger son is in middle complexion, looks like his father; after marriage, complainant was living with her children at the residence of her parents and the A1 used to visit h is wife and children then and there.
5. During the year 2006, the A1 took his wife and his children to his house situated at Trustpuram, where his mother and sisters A2 and A3 are residing and all of them were living as a joint family. The A1 and A3 used to subject the complainant to cruelty by way of scolding her as “mdhij & ntiyf;fhhp” tied her legs with a chain and did not offer food and tortured her; as the elder son of the complainant who was aged about 5 ½ years is in fair complexion, the accused have tortured and threatened the victim boy by suspecting her paternity; when the complainant has asked about the above said act of the accused, on 19.04.2009, the accused 1 to 3 by suspecting the paternity of the complainant’s-elder son, beat and tied him inside the house without giving dress and food to him and also caused cigarette burns over the body with an intention to kill.
6. Based on the complaint, a case in R-2 Kodambakkam Police Station, Crime No.548 of 2009 under Sections 498(A), 307 I.P.C. was registered. After completion of the investigation, the case was charge sheeted and altered to Sections into 498(A), 307 I.P.C. & Section 23 of Juvenile Justice Act, 2015 against A1 And A3 and submitted the same before the XVII Metropolitan Magistrate, Saidapet, Chenni vide

P.R.C.No.16 of 2010 then committed to Sessions Judge, Mahila Court, Chennai vide S.C.No.67 of 2011 dated 01.02.2011. The trial Court examined around 12 prosecution  witnesses and with 6 exhibits and no material objects were marked.

7. After conducting the trial, the learned Special Sessions Judge Mahila Court, Chennai, acquitted A2 and A3 and acquitted A1 in respect of charge under Section 498A I.P.C. However, convicted under Section

307 I.P.C to undergo 5 years Rigorous Imprisonment and fine of Rs.10,000/- i/d 6 months simple imprisonment and hence the present appeal.

8. The learned counsel for the appellant contended that the learned Sessions Judge has erred in relying upon the evidence of P.W.2 and P.W.12 without considering the cross-examination and further contended that the injuries are simple in nature and without there being any medical evidence to show that the injuries sustained is grevious in nature as defined under Section 320 I.P.C. Conviction under Section 307 I.P.C is erroneous and prayed for scaling down the charge under Section 307 to 324 and relied upon the judgment rendered by me in Kalidoss and Others Vs The State represented by the Inspector of Police in A.No.775 of 2011, dated 26.11.2018
9. The learned Government Advocate for the respondent made his submissions in support of the judgment of the Sessions Court.

(a) The complainant Lurthmary was examined as P.W.1 and deposed that she got married to A1 during November 2003 and they begotten two sons Viz., Mr.X and Mr.Y. Due to some matrimonial dispute between P.W.1 and A1, they are living separately and the custody of elder minor son was with the A1. The A1 disowned both the children born to P.W.1 stating that they are not born to him. While that being so, she saw a flash news that her elder son was beaten by A1 and it was also showed in the news papers; they burnt the victim boy with cigarette; immediately after seeing the same, P.W.1 went to Kodambakkam Police Station and saved the victim boy; admitted in Child Hospital, Egmore.

10. The A1 is the husband of P.W.1. The A2 and A3 are the sisterin-law of the complainant. As stated supra A2 and A3 are acquitted by the learned Sessions Judge. P.W.2 is the victim boy Mr.X. P.W.3 to P.W.6 are neighbours and they have all turned hostile. P.W.7 is the father of P.W.1. P.W.8 and P.W.9 are the Doctors who treated the minor boy. P.W.10 is a member of Child Health Group. P.W.11 and P.W.12 are the Police Officers deposed regarding the discharge of their official duty; on receipt of the complaint from the Child Health Care and for rescuing the child from the custody of the father/A1; admitted the minor boy in the hospital; filed charge sheet for investigation.
11. The learned Sessions Judge, after completion of the trial has acquitted A2 and A3 and also the appellant herein for the charge under Section 498A for the reason recorded therein. However, convicted A1 for the charge under Section 307 I.P.C.
12. The sum and substance of the evidence of P.W.1 viz., the wife of the accused/ mother of the P.W.1 minor boy, that she was subjected to cruelty by her husband.

12(a) After seeing a T.V. News that her son was admitted in the Government Hospital; she went and saw the boy and thereafter, filed the complaint to the Police under Section 498A.

12(b). P.W.2 is the minor boy. P.W7 is the father of P.W.2. A1 is a Hindu. P.W.1 whom he married was a christian. They got married and begotten two sons Master A and B. P.W.1 was working at a bank doing house keeping work in Shastri Bhavan. The A1 is working as a clerk in a Advocate’s office. The second son who is dark complexion, has resemblance of A1 had no problem.

13. The first son against whom the appellant had alleged to have committed offence under Section 307 I.P.C is fair in complexion and the second son is in medium in complexion, look like the father and thus, as per the evidence of P.W.1 and P.W.7, the A1 entertained doubt as to the paternity of the P.W.2/minor boy. Due to the matrimonial dispute, they are living separately. P.W.2, the minor boy was with the father/A1.
14. From the evidence of P.W.3, P.W.4, P.W.5 and P.W.6, they all have turned hostile. P.W.10 who is a member of the Child Health Group stated that the on 18.10.2009 at about 1.30 p.m. she received a call stating that a boy named Mr.X, 5 ½ years old was kept in R2 Police Station and that she has to help them in admitting the minor boy in the hospital and went to the Police Station and rendered assistance to the child and admitted the minor boy in the hospital.
15. W.8 Dr.Ravisekar has examined the boy (P.W.2) and gave him treatment in Egmore Children Hospital; the doctor noticed 9 injuries on the body of P.W.2; on 20.10.2009, he was examined by a Pediatrician; he told that he was psycologically upset and he did not talk much to anyone; he told the Psychiatrist that his father and mother are separated and the family members did not support him; on 22.10.2009 when the child was again examined by the Psychiatrist in the presence of his mother, his mother told the doctor that the attitude of the child has been completely changed and he is afraid to come to her and is indifferent to the environment; thereafter, he was examined after one week and at that time also, he was in the same condition; after 10 days, when the boy was examined by the Psychiatrist, the boy seems to be little happy and his mental health also improved; counselling was given to his mother and he was sent along with his mother; Doctor certified that the child had sustained grevious injuries and issued Accident Register Copy Ex.P2 and

Opinion Ex.P3 to that effect.

16. W.9 Dr. Jeyachandran is the Pediatrician who had given treatment to P.W.2 victim boy; he has deposed that the child was admitted by telling that he was beaten by his father and aunt; the child was diagnosed and found to to be having injuries and signs that he was attacked; after performing all the essential tests, he was given antibiotic ointments and liquid diet and opinion was obtained from Experts like Pediatrician, Orthopeadician, Dermatologist, Psychiatrist and Nutritionist; on 20.10.2009, Psychiatrist examined the boy and found him suffering from malnutrition and aneamia; on 28.10.2009, the child started to take food; injuries found on the body was started to heal; he was asked to submit Report to the National Commission for Protection of Child Lines, New Delhi thorugh the Director of Children Hospital and based on the same, he issued Preliminary Report Ex.P4.
17. It appears that the said news was flashed in some of the private channels; on seeing the same, the mother of P.W.2, appeared before the Police Station and stated that on the next day, i.e., 10.2009, P.W.1 appeared before the Police Station and gave a complaint stating that her son was tortured by the accused. P.W.1 has stated in her evidence that her husband A1 had suspicion about the paternity of her elder son

Venkatesh since he had a fair complexion and due to such suspicion, the A1 along with A2 and A3 harassed her elder son and made him starve without any food or care. She has also stated that when she saw her son in the hospital, he was in a very dangerous condition.

18. W.12 Investigation Officer has stated that one

Gopalakrishnan gave information to the Police that a boy named minor X was tortured by his father and aunts and he was in a dangerous condition. P.W.12 went to the house of the A1 and found P.W.2 was kept near the fridge in the kitchen and he was covered with a cloth. When P.W.12 opened the cloth, he found that the boy was in a very dangerous condition and he was struggling for his life. P.W.12 contacted the Child Helpline immediately and handed over the child to him in order to give medical attention.

19. The case of the prosecution is that of attempt to commit filicide, the act of a parent killing their child.
20. In the instant case, Doctor have noticed that it is a case of

“Battered Child Syndrome”.

21. “Battered Child Syndrome” refers to a child subjected to serious physical abuse by an adult care giver. It is a form of a child abuse. In addition to physically injury, there may be deprivation of nutrient, care and affection.
22. It is normally associated with an unwanted child, illegitimate child or a child whose fathers paternity is doubted is usually a victim. In the case in hand, the accused suspected the paternity of his first child since is a more fair complex.

 

23. W.9, Dr.Ravisekar is the Doctor, who registered the Accident Register-Ex.P2. He has stated that on 19.10.2009 at about 11.30 a.m. when he was on duty in Casuallity, Child Helpline Team Member, Megalai brought the victim boy P.W.2 through R2 Police Station; the child was very pale and he was suffering from malnutrition. On enquiry, P.W.2 told that he was beaten up by his father and aunts; the following injures are found to be present on the body of P.W.2 as found from Ex.P2.

1.2×3 cm. Pus injury on the left eye brow;

2.3×3 cm. Swelling on the right forehead;

3.1×1 cm. Old injury with swelling on the right parietal region;

4.7×3 cm. Fresh injury with pain on the left forehead;

5.1×1 cm. Old injury with swelling on his left knee;

6.7×7 cm. Swelling on his right thigh;

7.5×5 cm. A fresh swelling over his right knee; 8.5×1 cm. Abrasions and multiple scars on the jaw;

9.genitals circumsised.

24. It remains to be stated that it is an admitted position by both the parties that P.W.1/mother was living separately. The victim boy P.W.2 was along with A2 and A3 in the house of A1. P.W.10 Investigation Officer has picked up the child from the house of A1 in a very bad circumstances near the fridge, in the kitchen he was covered with a cloth. According to the police officials, he received a call stating that in the neighboring house a boy was subjected to physical assault and cruelty by his father and hence, he went to the house of A1 and rescued P.W.2.
25. At this juncture, it is relevant to state that P.W.2, the victim boy, in his chief examination has categorically stated that in his evidence that his father confined him in box because he was white in complexion and he was kept in the bathroom and on seeing his condition, local people gave information to the Police and Police came and rescued him; his mother saw him in the hospital and she attended him in the hospital for one month and thereafter, he was discharged and sent with his mother.
26. On a combined reading of the evidence of P.W.1 , P.W.2, and P.W. 12 makes it clear that a boy was in the custody of A1 and he was rescued by the Police and subsequently admitted in the Child Hospital, Egmore for treatment. Both P.W.10 and P.W.12 categorically stated that the doctor who had givn Preliminary Report Ex.P4 was examined as P.W.9. He has stated in his evidence that in Ex.P4 Preliminary Report it has been diagnosed that the child has “Battered Baby Syndrome”. The child was given blood transfusion for blood anemia. He was provided with fluids and other antibiotics, tetanus toxoid and skin ointment. The Psychiatrist opinion about the condition of the child has confirmed that the child was emotionally disturbed and psychological intervention was also made periodically. The Nutrition status of the child was observed as “Grade II Protein energy malnutrition/ Nutrition anemia/ first degree shortening”. So, the medical reports would confirm the fact that the child was in a dangerous condition and he was affected both physically and emotionally. From condition of the boy so substantiated with the oral evidence of P.W.1, P.W.2, P.W.8, P.W.9, P.W.10 and P.W.12 and the medical reports would prove that the child who was in the custody of his father was tortured by frequent beating and starvation. The condition of the boy was so bad and had there not been medical intervention, it would have been fatal to thelife of the boy.
27. The medical evaluation reportedly stated that, the parents were unable to explain injury and concluded that minor boy was suffering from battered baby syndrome. The battered baby syndrome is a clinical condition young children who have received serious physical abuse, is a frequent cause of permanent injury or death. After going through the reports, I find that the instant case is one such.
28. The submissions made by the learned counsel for the

appellant is considered. The citation which he refers to as stated supra is with regard to non-production of the X-ray for the alleged offence under Section 307 I.P.C. and hence, the same was converted into Section 324 I.P.C. However, the facts and circumstances in this case are entirely different. The P.W.9, Dr.Ravisekar, in the Accident Register had categorically stated that the victim boy is suffering from “Battered Child Syndrome”.

29. Ravisekar, P.W.9 had issued Ex.P.4, Preliminary Report (B8). Hence, this Court finds that the condition of the child during the relevant point of time when he was in the custody of A1 and from his custody, the Police P.W.10 had rescued the boy and with the assistance of the Child Welfare Committee Member helped the Police Officials in admitting the victim boy in the hospital. The medical evidence directly indicate that the A1 only responsible for causing such serious condition of P.W.2 as extracted supra.
30. As P.W.2 a minor boy was in a custody of A1 in his house and hence it is within the knowledge of A1 to explain the injuries and the health condition of P.W.2 a minor boy. In the absence of any positive evidence to rebut the basic presumption that the accused has caused injury and malnutrition condition of P.W.2 and therefore, the trial Court has raised a presumption in favour of the prosecution that the accused has committed an offence and the trial Court has rightly concluded that in the absence of any positive evidence to rebut the basic presumption the accused has caused injury and laid the conviction.
31. It is a basic knowledge that if a 5 years old is made to starve without any care or attention, it will cause his death. The hatred and indifference he showed to the boy was evident from the condition of the boy when he was in his custody. The slow killing of the boy was very much evident from the condition minor boy was rescued by the police on the information given by the local people. The boy was suffering from anemia and severe malnutrition. Besides he was emotionally unstable, strange and indifferent to his environment. He had several injuries on his body and he was treated by multiple specialists by keeping him as an inpatient for more than 20 days at the Children’s Hospital. His condition was so depleted that death would have been the next stage if he was not rescued and treated in time. The motive for such all ill treatment meted out to the boy was because of the suspicion in the mind of the first accused regarding his paternity.
32. Merely because X-ray was not marked, will not be a ground to negate the charge under Section 307 I.P.C. On a combined reading of oral evidence of medical witnesses P.W.8 and P.W.9, coupled with the Ex.P.2 (Accident Register) and Ex.P3 (Doctors opinion) and Ex.P.4 (report of P.W.9), this Court has come to an conclusion that had not there be a treatment after rescuing by the Kodambakkam Police Station, the health condition of the victim boy was in a dangerous condition and if not treated it would have likely led to the death of the victim boy.
33. It is further to be noted that, as projected by the prosecution, the motive for such an ill-treatment met-out to the boy was because of the suspicion entertained by the A1 that regarding his paternity. Hence, I find that the conviction laid under Section 307 I.P.C. need not be interfered with as the said finding by the learned Sessions Judge does not suffer from any irregularity or illegality warranting interference at this appellate stage.
34. Heard the learned counsel appearing for the appellant and the learned Government Advocate (Crl.Side), on the point of quantum of sentence, the learned Sessions Judge has sentenced to undergo 5 years of Simple Imprisonment. Taking the entirety of the circumstances and relationship between the parties and the accused said to be reformed after the incident and doing free legal services as an Advocate Clerk, this Court is of the considered view that the sentence to be reduced to 3 years Simple Imprisonment and accordingly, the sentence alone is modified and fine amount kept intact.
35. The good hearted neighbours as a Samaritan has informed the condition of P.W.2 minor boy to the police which led to rescue and medical treatment and the Investigation Officer namely Vijayakumar, the Inspector of L&O R2, Police Station, Kodambakkam has taken a shift action in rescuing the minor boy, this Court put on records of appreciation the Samaritan action of the neighbours and the shift action of the Investigation Officer on record.
36. Accordingly, this Criminal Appeal is partly-allowed and the conviction under Section 307 of I.P.C is confirmed and the sentence is reduced to the extent indicated above.

  05.09.2023

Index      : Yes/No

Speaking Order/Non-Speaking Order

Neutral citation : Yes/No gba

To

1.The Sessions Judge,

Mahila Court (Mahallir Neethimandram, Chennai),    Chennai.

2.The Inspector of Police,    R2 Kodambakkam Police Station,    Chennai.

Crime No.548 of 2009.

3.The Public Prosecutor,     High Court of Madras,     Madras.

RMT.TEEKAA RAMAN, J.

gba

 Judgment in

Crl.A.No.161 of 2018

• 05.09.2023