BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Crl.A.(MD).No.128 of 2009 Crl.A.(MD).No.131 of 2009 and Crl.A.(MD).No.147 of 2009 Selvam .. Appellant in Crl.A.(MD).No.128/2009/A6 Ayyachamy alias Rasu Iyar .. Appellant in Crl.A.(MD).No.131/2009/A4 1.Malliga 2.Muniyandi 3.Kaliammal .. Appellants in Crl.A.(MD).No.147/2009/ A1 to A3 Vs The State through the Inspector of Police Palanichetty patty Police Station in Cr.No.225/2005 Theni District. .. Respondent in all the appeals PRAYER These criminal appeals have been preferred under Section 374 Cr.P.C to call for the records and set aside the conviction and sentence imposed on the appellants dated 31.03.2009 made in S.C.No.17/2007 by the Additional Sessions Judge (Fast Track Court), Periyakulam. !For Appellants ... Mr.S.Jothimani for A6 Mr.M.Subash Babu for A4 Mr.D.Malaichamy for A1 to A3 ^For Respondent ... Mr.Danieal Manoharan Addl.Public Prosecutor :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
This judgment shall govern these three appeals, namely Crl.A.(MD).No.128
of 2009 by A6, Crl.A.(MD).No.131 of 2009 by A4 and Crl.A.(MD).No.147 of 2009 by
A1 to A3. All these appellants along with one accused who is ranked as A5 stood
charged and tried by the learned Additional District and Sessions Court
(F.T.C.), Periyakulam in S.C.No.17 of 2007 for the following charges;
Accused Sections A1 302 315 and 201 IPC A2 315 and 201 IPC A3 315 and 201 IPC A4 315 and 201 IPC A5 201 IPC A6 302 r/w 109 IPC
On trial, A1 was convicted under Sections 302 and 201 IPC and awarded life
imprisonment along with a fine of Rs.5,000/-, with a default sentence of six
months simple imprisonment for the offence under Section 302 IPC and seven years
rigorous imprisonment along with fine of Rs.2,000/-, with a default sentence of
three months simple imprisonment; A2 to A4 were convicted under Sections 315 and
201 IPC and awarded 10 years rigorous imprisonment along with a fine of
Rs.3,000/- each, with a default sentence of four months simple imprisonment for
the offence under Section 315 IPC and seven years rigorous imprisonment along
with fine of Rs.2,000/- each, with default sentence of three months simple
imprisonment for the offence under Section 201 IPC; A5 was convicted for the
offence under Section 201 IPC and awarded seven years rigorous imprisonment
along with a fine of Rs.2,000/-, with a default sentence of three months simple
imprisonment; A6 was convicted for the offence under Section 302 r/w 109 IPC and
awarded life imprisonment along with fine of Rs.5,000/-, with a default sentence
of six months simple imprisonment. Hence the appeals are at the instance of A1
to A4 and A6.
2. The short facts necessary for the disposal of these appeals can be
stated as follows:-
(i) A1 is the daughter of A2 and A3. A4 is a close relative of A1. The
first accused developed illicit intimacy with A6, who was already married and
had children. Pursuant to the illicit intimacy, she became pregnant. When it
came to the knowledge of A6, he was pressurising her to have an abortion. Apart
from that, there was a Panchayat convened on 14.06.2005 in which it was decided
that A6 should pay Rs.10,000/- to A1 and she should not proceed against him
thereafter and it was also decided if a child was born alive, it must be killed.
ii) On 18.06.2005 a child was born in the clinic of P.W.2 and the child
was alive. P.W.2 has deposed that the child was born alive and it was handed
over to A1 at the morning hours on 17.06.2005. After getting the child, A1 to A3
went to the hut of A4 situated near to the clinic, where A1 pressed the chest of
the child and caused the death. This was known to A4 also. The dead body of the
child was handed over to A4, who in turn handed over the same to A5. A5 took the
dead body of the child in a fertilizer bag to the burial ground. When P.W.1, the
Village Administrative Officer, Allinagaram Village, Theni came along with his
menial found A5 with fertilizer bag in her hand near the burial ground and
entertaining suspension he questioned her. Then A5 in turn replied that the dead
body of the child was handed over to her by the accused persons in order to bury
the same. Immediately P.W.1 took A5 to the police station and gave Ex.P1,
complaint.
iii) On the strength of Ex.P1, complaint, P.W.12, the Sub Inspector of
Police of the respondent station registered a case in Cr.No.225 of 2005 under
Sections 315 and 320 IPC. The printed FIR Ex.10 along with Ex.P1, the complaint
was despatched to the Court concerned and to the higher officials.
iv) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of
the Circle, took up investigation, proceeded to the spot, made an inspection in
the presence of witnesses and prepared an Observation Mahazar Ex.P5 and a rough
sketch Ex.P15. The investigator conducted inquest on the dead body of the
child in the presence of the witnesses and panchayatdars and prepared an inquest
report, which was marked as Ex.P.16.
v) Following the same, the dead body of the child was sent to the
Government Hospital, for the purpose of autopsy. On receipt of the requisition
made by the investigator Ex.P11, the Doctor, P.W.13, attached to Government
Theni Medical College, conducted autopsy on the dead body of the child and
issued Ex.P.12, the post-mortem certificate, and opined that the child died due
to the injuries sustained on the Chest and also on the brain.
vi) Pending investigation, on being identified, P.W.14 arrested A1 to A5
and they were also sent for judicial remand. P.W.17, arrested A6 and at the time
of arrest A6 came forward to give a confessional statement voluntarily in the
presence of witnesses, and the admissible part of the confessional statement of
A6 was marked as Ex.P.6. Pursuant to which, Ex.P8 document was produced by him
and the same was recovered under a cover of mahazar Ex.P.17.
vii) On completion of the investigation, the Investigating Officer has
filed the final report. The case was committed to the court of sessions and
necessary charges were framed.
viii) In order to substantiate the charges, at the time of trial, the
prosecution examined 17 witnesses and relied on 24 exhibits and 3 material
objects. On completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating circumstances found in the evidence of prosecution witnesses. They
denied them as false. Neither any witness was examined nor any document was
marked on the side of the defence.
ix) After hearing the arguments of the learned counsel and looking into
the materials available, the trial court took the view that the prosecution has
proved the case beyond reasonable doubt and hence, found the accused guilty and
awarded the punishment as referred to above. Under these circumstances, these
criminal appeals have arisen at the instance of A1 to A4 and A6/appellants. A5
has not preferred any appeal challenging the judgment of the trial Court.
3. Advancing the arguments on behalf of the appellants, the learned
counsel would submit that in the instant case the prosecution had no direct
evidence to offer and it has got only circumstantial evidence. P.W.1 is the only
witness examined by the prosecution to speak about the circumstances relied on
by the prosecution. According to P.W.1, when he was coming across the burial
ground along with his menial, he found A5 having a fertilizer bag in her hand
and entertaining suspicion, he asked her and she gave a confessional statement
voluntarily and he immediately took her to the police station and gave Ex.P1
report. The Sub Inspector of Police, P.W.12 on the strength of the report Ex.P1,
registered a case in Cr.No.225 of 2005 for the offence under Sections 315 and
302 IPC.
4. The learned counsel would further add that in the instant case P.W.1
did not record any statement from A5, but immediately after the reply given by
A5 he took her to the police station and gave Ex.P1 report. A perusal of Ex.P1
report and also the evidence given by P.W.1 before the Court would clearly
indicate that his evidence has got to be rejected.
5. The learned counsel for the appellants urged by placing reliance on the
settled principle of law that the extra judicial confession made by one accused
against the other accused, is a weak piece of evidence. In the instant case such
statement remained unacceptable and hence the evidence of P.W.1 should be
rejected.
6. The learned counsel for the appellants took the Court to Ex.P1 wherein
it is stated that A5 informed P.W.1 that the dead body of the child was handed
over to A5 by A4. On the contrary when P.W.1 gave evidence before the Court, he
has stated that the dead body of the Child was handed over to A5 by A1 while a
few persons were by her side and thus, this material fact is found to be
discrepant both in the Ex.P1 report and also the evidence of P.W.1 before the
Court and hence, the evidence of P.W.1 should have been rejected.
7. In the instant case, it is true that even in the evidence of P.W.1, he
did not mention the names of any other accused except A1, as if they have been
on the side of A1, and apart from that, in so far as A4 is concerned, there is
no specific evidence to indicate that it was he who handed over the dead body of
the child to A5. It was the case that A5 was taken to police station and a case
was registered and thus, from the evidence available, the only person to be
found guilty is A5 because she has made all attempts to screen the evidence. In
respect of the other appellants as to the murder and as to the handing over the
dead body of the child to A5, there is no evidence at all. Under such
circumstances, the appellants should not have been found guilty either under
Section 315 or 302 or 201 of IPC for screening the evidence and hence they are
entitled for acquittal.
8. The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions.
9. It is not in controversy that pursuant to the registration of the case
in Cr.No.225 of 2005 by the respondent police, the Inspector of the police of
the circle, took up the investigation and after preparation of the inquest
report, the dead body of the child was subjected to postmortem by P.W.13, the
postmortem doctor, who has given a categorical opinion that the child died out
of the injuries sustained on the ribs and also on the brain. Thus, the
prosecution was successful enough in proving the fact that the child died due to
homicidal violence.
10. In order to substantiate the charges levelled against the appellants,
the prosecution has no direct evidence to offer and it relied upon the evidence
of P.W.1, the Village Administrative Officer. It is needless to say that when a
confessional statement was given by an accused against the other accused, in
order to rely on that the Court should look into other supporting evidence. In
the instant case, even the evidence of P.W.1 was contrary to the report given by
him to the police. On the strength of Ex.P1 report, a case came to be registered
and a perusal of Ex.P1 would indicate that when A5 was enquired by P.W.1, the
Village Administrative Officer, A5 has replied that the dead body of the child
was handed over by A4 at the coconut shop. When P.W.1 was examined in Court he
has categorically stated that A5 has informed him that the dead body of the
child was handed over by A1 and a few others and this vital and major
discrepancy is noticed as to who actually handed over the child to A5 which was
brought by her. Thus, what are all available in the evidence adduced by P.W.1
was only to the extent that the dead body was found in the hands of A5 and she
also informed that the dead body was given to her to screen the evidence and to
that extent A5 is found liable. In so far as the other part of the incident of
murder and handing over the child, the prosecution has no evidence to offer
before the trial Court. Even the evidence adduced would not satisfy the legal
requirements to prove the charges levelled against the appellants. Under such
circumstances, though the prosecution was able to prove that the child died out
of homicidal violence and A5 has got the custody of the dead body of the child
and she was actually about to screen the evidence and except this part, the
prosecution did not prove any one of the charges levelled against the
appellants. Under such circumstances, the judgement of the trial Court is set
aside in respect of the appellants/A1 to A4 and A6. Therefore, the appellants
are acquitted of all the charges. The fine amount if any paid by the
appellants/A1 to A4 and A6 shall be refunded and the bail bonds executed by the
appellants/A1 to A4 and A6 shall stand cancelled. Accordingly, these three
appeals are allowed.
jikr/sj
To
1.The Additional District and Sessions Court
(F.T.C.), Periyakulam.
2.The Inspector of Police
Palanichetty patty Police Station i
Theni District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.