Krishnaswami Ayyangar, J - (1.)The accused in this case has been charged with having committed the offence of murder by intentionally causing the death of her new born infant by drowning it in a Corporation syphon (cess-pool) on or about 9 April 1940 at Madras. The facts, deposed to by the witnesses called for the prosecution may be briefly summarised as follows: The accused is a widow with six children living at No. 16, Bhashyakaralu Naidu Street, George Town, Madras. She was keeping a botol-nut shop in No. 51, Krishnappa Naicken Agraharam, George Town. On the morning of 10 April last at about 10 A.M. Madurai Naicker, P.W. 1, living in No. 30, Bhashyakaralu Naidu Street, found that the drain in his court-yard was obstructed. He went out to tho street and examined the syphon in front of his house to find out what the cause of obstruction was. He removed the cement lid and then removed the iron bucket in the syphon; and when he looked in, he found first, five fingers of the palm of the left hand of a dead child and then he noticed also the head. He went to the police station at the Seven Wells almost immediately and reported to the head constable present at the police station what he found in the syphon. The Sub-Inspector in charge of that station (Mr. Ramanujam) examined as P.W. 12, followed by a constable and a head constable came to the front of Madurai Naicker's house and found in the syphon the hand and head of a dead child as reported by Madurai Naicker. The body was taken out at the instance of the police by Jogi Veeraraghavan and it was found to be the dead body of a recently born male child. The Hub-Inspector, P.W. 12, had the body removed to the police station and from there it was sent under police custody to the general hospital for post-mortem examination. Dr. Srinivasalu Naidu, P.W. 3, Professor of Medical Jurisprudence attached to the Medical College, Madras, held the post-mortem examination and found the condition of the corpse in the state described by him in his certificate. It is unnecessary to go into details for the present purpose; but DR. Srinivasalu Naidu expressed the opinion in his certificate that the infant over whose body he held the post-mortem examination should have been alive when born and drowned in the cess-pool - an opinion which he repeated in his evidence before the Court here. The accused was arrested at about 11-30 on lo April, 1940 by P.W. 12 and three sarees were seized from her. That night she was sent by Mr. Ramaseshan, Sub- Inspector, Grimes Branch (P.W. 14) to the Gosha Hospital, Triplicane, for medical examination. Miss Oommen, the Resident Medical Officer of the Hospital, examined the person of the accused at 3 A.M. on the morning of 11 April 1940 and from the appearances found she came to the conclusion that she must have been recently delivered of a child and that opinion was repeated by her before this Court during the course of the evidence that she gave here. The three articles of clothing seized from the accused by P.W. 12 along with another saree and a jacket recovered from her at the Gosha Hospital were sent to the Government Chemical Examiner, and on examination he detected blood on one of the articles, namely M.O. 1, a torn, dirty, grey, cotton cloth with red and white cross stripes and red, green and white borders, on which were brownish stains. This was one of the three articles seized by Sub- Inspector Ramanujam from the accused when he arrested her on 10 April, 1940. A specimen of the stains found on it was sent to the Imperial Serologist for the purpose of ascertaining whether the stains were stains of human blood and his report (Ex. G-1) which has been exhibited on the side of the prosecution is that the cloth (M.O. l) was stained with human blood. Mr. Ramaseshan who was examined as P.W. 14, Sub- Inspector of the Crime Branch, was in charge of the investigation. It was he who took charge of the articles of clothing seized by P.W. 12 and also of those recovered from the accused at the Gosha Hospital.
(2.)Evidence has been called by the prosecution of three witnesses, namely P.Ws. 6, 7 and 8, two of whom, P.Ws. 6 and 8 were tenants living in No. 51, Krishnappa Naicken Agraharam, the place where the accused was keeping the betel-nut shop, and the third P.W. 7, was the owner of the house. Briefly their evidence is that they had seen her about 6 or 7 April and found her abdomen prominent, in other words, found signs of advanced pregnancy on her. On the night of the 10th when the accused was arrested, P.W. 7 the owner of the house was there and noticed that the size of the accused's abdomen had diminished or, as he put it, it was not so big as it was before. That statement is corroborated by the evidence of P.W. 8, a goldsmith, who was a tenant in the same house as the one in which the accused was having her shop. The prosecution also called the Kanakupillai in charge of the burial ground at Washermanpet to which place the bodies of persons who died in Bhashyakaralu Naidu Street are ordinarily taken. He deposed that no dead body of any child was brought to the burial ground between 8 and 11th April last.
(3.)This is the substance of the evidence adduced by the prosecution. It seems to me that here is a quantity of evidence tending to show, if believed, that the accused was seen in an advanced state of pregnancy about 6 or 7 April last and was delivered of a child on or about 9 April. The evidence, if believed, would seem to establish that on the morning of the 10 there was found in the syphon in front of Madurai Naicker's house the dead body of a recently born male child; but there is no evidence that that child was the child born to the accused, nor any direct evidence tending to show that it was the accused that deposited the child in the syphon. The charge against the accused, it may be remembered, is that she intentionally caused the death of her new born infant by drowning it in the Corporation syphon. That being the charge against her the prosecution must not only prove that she was recently delivered of a child but also that the body of the child found in the cess-pool was the, body of her child. The facts deposed to by the prosecution witnesses no doubt amount to circumstances causing a suspicion against the accused; but in the trial of an accused for a crime, or for that matter even in the trial of a civil cause, suspicion cannot be made the ground of a finding by the Court or jury as the case may be.