IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.1113 of 2007 C.Vilvanathan .. Appellant vs State by Inspector of Police Umarabad Police Station Vellore District (Crime No.406/2002) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court, Tirupathur, Vellore District, in S.C.No.310 of 2004 dated 27.8.2007. For Appellant : Mr.S.Kalyanaraman For Respondent : Mr.P.Kumaresan JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court, Tirupathur, Vellore District, made in S.C.No.310 of 2004 whereby the appellant/sole accused stood charged under Sec.302 of IPC (two counts), and on trial he was found guilty as per the charge and awarded life imprisonment which was ordered to run concurrently.
2.The short facts necessary for the disposal of this appeal could be stated thus:
(a) P.W.2 is the wife of the appellant/accused. P.W.3 is the mother of P.W.2. P.W.2 along with the children was residing in the house of her mother P.W.3. P.W.4 is her brother. On 31.5.2002, the accused came to the house and took both the children namely the first deceased (D1) Aravind and the second deceased (D2) Haribabu aged 5 and 7 respectively, towards the temple at Kailasagiri hill. When he was proceeding, he was seen by P.Ws.5, 6 and 7. Thereafter, he was returning which was witnessed by P.Ws.6 and 7. But, the children were not brought by him. On the next day i.e., 1.6.2002, P.W.8 who is the watchman of the temple, was informed by two ladies who came to pick the firewood, that two bodies of children were found nearby the temple. Immediately, P.W.8 went over there and found one child dead and the other child struggling for life. Immediately, he brought the same to the notice of P.W.1, the Village Administrative Officer (VAO).
(b) P.W.1 after verifying the same, proceeded to the respondent police station and gave Ex.P1, the report. P.W.16, the Inspector of Police, attached to the respondent police station, who was available at that time, on the strength of Ex.P1, the report, registered a case in Crime No.406 of 2002 under Sections 302 and 307 of IPC. The printed FIR, Ex.P30, was despatched to the Court. Then, he took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar Ex.P17 and a rough sketch, Ex.P22. He recovered the material objects including the bloodstained earth and sample earth, and thereafter, he conducted inquest on the dead body of D1 Aravind in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P27. Then, the dead body of D1 was sent to the hospital for the purpose of postmortem.
(c) D2 Haribabu was sent to the hospital and was given treatment. Despite the same, he died at about 3.45 P.M. on 1.6.2002 in Vellore Government Hospital. The death intimation was sent to the police. Thereafter, P.W.16 altered the case in respect of D2, into Sec.302 of IPC, and Ex.P16, the express report, was sent to the Court. Then, he conducted inquest on the dead body of D2 in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P23. He gave a requisition to the hospital authorities for the purpose of autopsy over the dead body of D2.
(d) P.W.12, the Medical Officer, on receipt of the requisition conducted autopsy on the dead body of D1 Aravind and has issued a postmortem certificate, Ex.P16, wherein he has opined that the deceased would appear to have died of head injury about 24 hours prior to postmortem.
(e) P.W.11, the Medical Officer, on receipt of the requisition conducted autopsy on the dead body of D2 Haribabu and has issued a postmortem certificate, Ex.P14, wherein she has opined that the deceased would appear to have died of head injury about 24 hours prior to autopsy.
(f) The accused appeared before the VAO, P.W.9, on 2.6.2002 at about 2230 hours, and he gave a confessional statement. The same was recorded by P.W.9, the VAO, which is marked as Ex.P2. Thereafter, he was produced before the Investigator, before whom he came forward to give a confessional statement. The same was recorded, and the admissible part is marked as Ex.P31. He took the Investigator and the witnesses also and produced M.O.1, Cycle, which was recovered under Ex.P3, mahazar. Thereafter he produced M.O.2 stone, which was recovered under Ex.P4, mahazar. Then, he was sent for judicial remand. All the material objects were subjected to chemical analysis which resulted in Ex.P15, the chemical analyst’s report. The Investigator examined the witnesses and recorded their statements. On completion of investigation, he filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 16 witnesses and also relied on 38 exhibits and 13 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The Court below heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found him guilty as per the charge of murder (two counts) and awarded life imprisonment which was ordered to run concurrently. Hence this appeal at the instance of the appellant/accused.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that according to the prosecution, the occurrence has taken place on 31.5.2002; that the prosecution had no direct evidence to offer; that it has rested its case on the evidence of P.Ws.5, 6 and 7 to speak about the last seen theory; that P.W.7 has categorically stated that he saw a person taking two children, and he could not say whether it was the appellant/accused or not, and hence his evidence was not useful to the prosecution; that as far as P.Ws.5 and 6 are concerned, they were all chance witnesses; that their statements were recorded by the police on 3.6.2002; that apart from that, both these witnesses were not certain as to the date and time when the accused took the children; that their evidence was not pressed into service by the prosecution; that as far as the extra-judicial confession alleged to have been given by the appellant/accused to P.W.9 was concerned, it cannot be acted upon for the simple reason that according to P.W.9, the same was recorded in the police station; that apart from that, it was also recorded pending the investigation; that under the circumstances, it has got to be rejected; that in the instant case, the conduct of the accused would clearly indicate that he could not have done the crime at all; that according to P.W.2, her husband namely the appellant herein, also joined with her in search of the children, and he also accompanied her to the police station; and that under the circumstances, not only the arrest, confession and recovery have got to be disbelieved, but also the conduct of the accused would clearly indicate that he could not have taken part in the crime.
5.Added further the learned Counsel that as far as the recovery of M.O.1, cycle, and M.O.2, stone, was concerned, P.W.9 has categorically admitted that all the recovery mahazars were prepared only in the police station, and hence the prosecution has miserably failed to prove its case; but, the lower Court was carried away by the fact that two children were killed, and therefore, it has taken an erroneous view that it was the accused who committed the crime; and that in view of what is stated above, he has got to be acquitted since the prosecution has failed to establish its case.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that one Aravind, aged 5, and Haribabu, aged 7, the children of the appellant/accused and also P.W.2, were done to death. One died at the place of incident, and the other died at the Vellore Government Hospital, where treatment was given. Following the inquest made by the Investigating Officer, P.W.16, both the dead bodies were subjected to postmortem by P.Ws.11 and 12, the Doctors, respectively who have categorically opined as witnesses before the Court and also by issuing postmortem certificates that both died out of head injuries, and such injuries would have been caused by a stone like M.O.2. The fact that they died out of homicidal violence was not a subject matter of controversy before the trial Court, and hence without any impediment it could be recorded so.
8.In order to substantiate the charge levelled against the accused that he has committed infanticide of both his children namely Aravind and Haribabu, aged 5 and 7 respectively, the prosecution had no direct evidence to offer. But, when the evidence available are scrutinized carefully, the Court is satisfied that the prosecution has proved the case beyond reasonable doubt. In the case on hand, two strong circumstances are noticed by the Court. According to the prosecution, the accused took both the children towards the hill area and caused the death of the children by attacking them with the stone on 31.5.2002 at 5.00 P.M. Now, at this juncture, it is to be pointed out that according to P.W.2, the wife of the appellant, both the children were with her, and he came over there and took both the children, and after sometime, he returned alone, and she questioned him about the children; but, he did not give any responsible answer, and on the other hand, he gave some false excuse, and the same was believed by her, and then she was also making a search, and in that process, the accused has also joined with her. When it is admitted that the accused who had actually taken the children from the custody of the mother P.W.2 and he returned alone, he was the only person who could explain as to the absence of the children, and no one else except him. In a given case where a particular relevant fact is within the special knowledge of a person, it is for him to explain the circumstance. In the absence of any explanation or if a false explanation is tendered or there is suppression of relevant circumstance, it has got to be inferred that he is the person concerned. In the case on hand, having taken the children from the custody of the mother, he has not come forward to offer any explanation, and in fact, there was no explanation at all. Under the circumstances, it could be easily inferred that it was he who committed the crime.
9.The other circumstance which was in support of the prosecution, was the evidence of P.Ws.5 and 6, according to whom they found the appellant/accused taking the children; but, he returned alone. It is true that P.Ws.5 and 6 could not fix the date and time; but, P.W.6 has categorically stated that within a few days thereafter, the witness was informed that the children are dead and were murdered, and thus, it would be quite clear that the accused who took the children, has actually committed the act of murder and has returned alone.
10.As far as the extra judicial confession, the arrest, the confessional statement and recovery of M.Os.1 and 2, Cycle and Stone respectively, are concerned, as rightly pointed out by the learned Counsel for the appellant, the evidence of P.W.9 was to the effect that all the recovery mahazars were prepared in the police station, and hence no evidentiary value could be attached to those documents. Even then, this Court is of the considered opinion that the two circumstances as narrated above, would clearly indicate that except the appellant/accused, no one could have committed the crime. Thus, the act of the accused would indicate that it is very horrible and also a heinous crime. The motive attributed by the prosecution was that he was having connection with number of ladies, and on seeing this, P.W.2 compelled him to settle the properties in the name of the children, and under the circumstances, he has taken the life of two children. The lower Court was perfectly correct in coming to the conclusion that it was an act of murder and in finding him guilty under Sec.302 (two counts) of IPC and awarding life imprisonment.
11.In the result, this criminal appeal has got to be dismissed, and accordingly, it is dismissed confirming the judgment of the lower Court.
nsv/
To:
1)The Additional District and
Sessions Judge
Fast Track Court,
Tirupathur, Vellore District.
2)The Inspector of Police
Umarabad Police Station
Vellore District
(Crime No.406/2002)
3)The Public Prosecutor
High Court,
Madras