IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.37 of 2008 V.Dilip Kumar .. Appellant vs State by: Inspector of Police Thudiyalur Police Station Crime No.163/2007 (PRC No.9/2007 JFCM No.1) Coimbatore .. 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 No.I, Coimbatore, made in S.C.No.112 of 2007 dated 24.9.2007. For Appellant : Mr.A.Sankaran Amicus Curiae For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Coimbatore, made in S.C.No.112 of 2007 whereby the accused stood charged under Sections 364, 369, 392 read with 397, 302 and 201 of IPC, tried, found guilty as per the charges and awarded life imprisonment, 7 years Rigorous Imprisonment, 10 years Rigorous Imprisonment, life imprisonment and 7 years Rigorous Imprisonment respectively, which were ordered to run concurrently.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.Ws.1 and 4 are the residents of Goundampalayam. They had two children namely Pradheep and Deepa aged 2 = at the time of occurrence. P.Ws.5 and 8 are neighbours residing in the house abutting the house of P.W.1. P.W.1 left for his business in the morning hours as usual. On 1.3.2007 at 10.00 A.M., P.W.4 was washing the clothes in the backside. At that time, in front of the pial, she found the accused playing with her child Dheepa. This was also witnessed by P.W.5, the neighbour. After sometime, P.W.4 came out and found her child missing. The accused took the child from the place, and it was also witnessed by P.W.8. Then, he went to the shop of P.W.9, where he purchased a chocolate at about 11.00 A.M. Thereafter, he took the child. P.W.4 who could not find the child, made a search. Her husband came by 2.00 P.M. She informed him, and they were making a search till night. P.W.7 found the accused proceeding with the child at 3.00 P.M.
(b) On 2.3.2007, at about 6.00 A.M. P.Ws.1 and 4 were in search of the child, and the dead body of the child was found in a ditch. Immediately, they took the child, brought home and found it injured. Thereafter, P.W.1 proceeded to the respondent police station where P.W.3, the Sub Inspector of Police, was on duty. He gave a complaint, Ex.P1, on the strength of which a case came to be registered in Crime No.163/2007 under Sec.174 of Cr.P.C. The printed FIR, Ex.P3, was despatched to the Court.
(c) On receipt of the copy of the FIR, P.W.15, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P11. Then, he conducted inquest on the dead body of Deepa in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P12.
(d) The dead body of Deepa was subjected to postmortem by P.W.13, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, pursuant to the requisition, Ex.P9, given by the Investigator. The Doctor has issued a postmortem certificate, Ex.P8, with her opinion that the deceased would appear to have died due to violent compression over neck.
(e) An additional report was given by the police that M.O.1, silver anklets, M.O.2, waist cord, and M.O.3 gold thayathu, which were worn by the child, were found missing. Then, the case was altered to Sections 302, 201 and 379 of IPC. The altered report, Ex.P13, was despatched to the Court. The further investigation was on.
(f) Pending the investigation, the accused appeared before P.W.11, the Village Administrative Officer (VAO) of the place, and gave a confessional statement which was recorded in the presence of his Assistant Nagappan. Then, he was taken to the police station and was handed over to the Investigating Officer before whom he also volunteered to give a confessional statement which was recorded by the Investigating Officer. The admissible part is marked as Ex.P14, pursuant to which he took the police party and produced in the presence of witnesses, M.Os.1 to 3 from the dustbin, and they were all recovered under a cover of mahazar. Then, he was sent for judicial remand. All the material objects were subjected to chemical analysis which resulted in Ex.P2, the chemical analyst’s report. It was also placed before the Court. On completion of investigation, the Investigating Officer filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 14 exhibits and 5 material objects. On completion of 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 lower Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and has entered a judgment of conviction and sentence which is the subject matter of challenge before this Court.
4.The learned Counsel Mr.A.Sankaran made the following submissions in his sincere attempt of challenging the judgment of the trial Court.
(i) In the instant case, the prosecution had no direct evidence to offer, but only relied upon the circumstances. Neither the prosecution placed nor proved the necessary circumstances pointing to the guilt of the appellant/accused.
(ii) According to the prosecution, P.W.4 the mother, actually found the accused playing with the child in front of the house; but, when she came out, she could not see the child, and she was searching the child along with her husband P.W.1. But, when she gave the complaint in the next morning, no whisper was made about the accused. Had it been true that the accused was found in the company of the child, the reasonable conduct of P.W.4 would be to inform to the police about the presence of the accused at or about the time, but not done so.
(iii) Further, the extra-judicial confession which was more relied upon by the prosecution and accepted by the trial Court, was nothing but false in order to suit the prosecution theory. According to P.W.11, the VAO, the accused appeared before him and gave a confessional statement, which was recorded in the presence of his Assistant Mr.Nagappan, but that Nagappan was not examined, and no explanation is tendered.
(iv) All the material objects were recovered from the dustbin, and the total value of M.Os.1 to 3 was only Rs.300 to 400/-. For this paltry sum, he would not have committed such a heinous crime of murdering a child.
5.Added further the learned Counsel that as far as M.Os.1 to 3 are concerned, there is no identification mark in order to fix that they belonged to P.W.1; that number of injuries were found on the body of the child; that they were not explained and how they happened remained unknown; that the Doctor has given opinion that the compression over the neck was the reason for the death; that in the instant case, the prosecution was unable to prove the cause of death; that P.Ws.5 and 8 could not have seen the accused in the company of the child; that they are all brought forth in order to suit the prosecution story; that if the evidence of P.W.9 that the accused came with the child and also purchased chocolate from his shop for Rs.5/- is true and if it was actually given to the child, the chocolate contents should have been found in the stomach, but nothing is found; that this theory of purchase of chocolate by the accused in the shop of P.W.9 along with the child was nothing but false; that under the circumstances, the prosecution has miserably failed to prove the case, and hence he is entitled for acquittal in the hands of this Court.
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 the dead body of the female child of P.Ws.1 and 4 by name Deepa aged 2 =, was found in a ditch. Following the inquest made by P.W.15, the Investigator, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given her categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that the child died due to violent compression over neck. Apart from that, the cause of death that it died out of the homicidal violence was never disputed by the appellant before the trial Court, and under the circumstances, no impediment is felt by the Court in factually recording so.
8.In order to substantiate that it was the accused who committed the crime of kidnapping the child and thereafter murdering the child after stealing the jewels, the prosecution had no direct evidence to offer. But, when the materials placed before the trial Court if carefully scrutinized, the following circumstances are noticed by the Court.
9.As far as P.W.4 is concerned, she is the mother of the child. According to her, at about 10.00 A.M., on the date of occurrence i.e., 1.3.2007, the child was actually playing in front of the house along with the accused, and at about 11.00 A.M., she was washing the clothes, and when she came out, she did not find the child. The other two witnesses are P.Ws.5 and 8, who are neighbours. According to P.W.5, she found the accused playing with the child. According to P.W.8, he found the child being taken by the accused, and he did not entertain any suspicion since they were under the impression that the child was taken to attend the nature’s call. Thereafter, they came to know that the child was found missing. P.W.9 was the person who actually sold the chocolate to the accused when he was taking the child. All put together would go to show that the child was actually kidnapped from the place where it was playing that was in front of the house of P.W.4.
10.Adding circumstance in the instant case was that a complaint was given in the next morning after making a thorough search and the dead body of the child was found in a ditch, and a case was registered under Sec.174 of Cr.P.C. It was altered to Sec.302 of IPC after the postmortem certificate and also the statement made by the witnesses examined at the time of inquest by the Investigator which would clearly point out that the accused was playing with the child during that time. Further, it is to be pointed out that at that time, a suspicion was entertained against the accused, and the same is also mentioned in the inquest.
11.Yet another circumstance was his appearance before P.W.11, the VAO, to whom he has given a categorical statement as to the crime. Further, the confessional statement has also been voluntarily given by him before the Investigating Officer, and the same has also been recorded pursuant to which he produced M.O.1, silver anklets, M.O.2, waist cord, and M.O.3, gold thayathu, worn by the child, and they were recovered on 3.3.2007. The occurrence has taken place at about 10.00 A.M. on 1.3.2007. Within 48 hours, all these material objects have been recovered pursuant to the confession given by the appellant/accused. Not only there was arrest and recovery of the jewels pursuant to the confession made in the instant case, but also it is a fit case where the Court could draw a presumption available under Sec.114-A of the Evidence Act, since all the jewels which were worn by the child, were found in the custody of the accused within a reasonable time which means within two days, and he had no explanation to offer which would be pointing that he was a thief who committed the crime.
12.Now, the contentions put forth by the learned Counsel for the appellant have got to be considered. According to him, no suspicion or whisper about the accused is mentioned in Ex.P1, the report. The Court cannot agree with this contention for the simple reason that at the time when Ex.P1 was given, they had no suspicion at all against the accused. Only after coming to know that it was a murder, and the jewels have also been stolen, and the witnesses at the time of inquest came forward to state that it was the accused who was playing with the child at or about the time of occurrence, they knew about the culprit. It is pertinent to point out that this inquest report has come into existence on 2.3.2007; but, the accused surrendered before the VAO and gave a confessional statement only on 3.3.2007.
13.Much comment was made by the learned Counsel that the chocolate contents were not found in the stomach. But, the Court is unable to see any point in this. There is nothing to show that actually chocolate was consumed by the child or it was administered.
14.As far as all these jewels namely M.Os.1 to 3 are concerned, the competent persons are P.Ws.1 and 4, the parents of the child. They have actually identified the jewels. The fact that no identification marks were found on the jewels cannot be a reason to disbelieve or discard the testimony.
15.Added further the learned Counsel that number of injuries were found on the dead body; that the postmortem Doctor has opined that the child died due to compression over neck, and thus, the medical opinion canvassed by the prosecution was not in favour of the prosecution case. This contention cannot be countenanced at all for the simple reason that all the injuries were abrasions and superficial. Even the throwing of the child on the floor would cause such injuries. It is not a case where the prosecution rested its case on the direct evidence, but on the circumstantial evidence. How those injuries happened to be on the body of the child, the accused himself is the competent person to speak. It is only within his special knowledge. So long he does not come forward to unfold the truth, nobody would come forward to give evidence. Hence the case is rested upon the circumstantial evidence.
16.In view of the above reasons, the contentions put forth by the learned Counsel for the appellant and narrated above, do not carry any merit whatsoever, and they are liable to be rejected, and accordingly, rejected. The circumstances, in the considered opinion of the Court, would be pointing to the hypothesis that except the accused, none else had kidnapped the child and caused the murder after robbing the jewels. The lower Court was perfectly correct both factually and legally in finding him guilty as per the charges. The punishment given to him is also found to be reasonable. Hence there is nothing to interfere in the judgment of the trial Court.
17.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the lower Court.
Mr.A.Sankaran, appointed as Amicus Curiae to argue the appeal on behalf of the appellant, is entitled to get remuneration from Tamil Nadu State Legal Services Authority.
(M.C.,J.) (S.R.,J.)
10-12-2008
Index: yes/no
Internet: yes/no
nsv/
To:
1.The Additional District and
Sessions Judge
Fast Track Court No.I
Coimbatore
2.The Inspector of Police
Thudiyalur Police Station
Crime No.163/2007
(PRC No.9/2007
JFCM No.1)
Coimbatore
3.The Public Prosecutor
High Court, Madras.
M.CHOCKALINGAM, J.
AND
S.RAJESWARAN, J.
nsv/
CRL.A.No.37 of 2008
Dt: 10-12-2008