BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/02/2008
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR. JUSTICE S.PALANIVELU
Crl.A.(MD) No.521 of 2007
T.Krishnasamy .. Appellant
vs.
The State
by the Inspector of Police,
Palani Adivaram Police Station,
Dindigul District. .. Respondent
Criminal Appeal filed under Section 374 (2) Cr.P.C against the Judgment of
conviction and sentence dated 24.08.2007 made in S.C.No.177 of 2005 by the
learned Principal Sessions Judge, Dindigul.
!For appellant ... Mr.D.Venkatesh
^For respondent ... Mr. P.N.Pandithurai
Addl.Public Prosecutor
:JUDGMENT
(Judgment of the Court was made
by M.CHOCKALINGAM,J)
Challenge is made to the judgment of the Principal Sessions Division,
Dindigul dated 24.08.2007 made in S.C.No.177 of 2005 whereby the appellant/sole
accused stood charged, tried and found guilty under Sections 364 and 302 IPC and
awarded 5 years rigorous imprisonment for the first charge and imprisonment for
life for the second charge.
2. The short facts that are necessary for the disposal of this appeal can
be stated as follows:
(i) PW.1 is the resident of Kudumbapatti within the jurisdiction of the
respondent police station. The accused/appellant was living in the opposite
house to that of PW.1. There was a land dispute over families on a passage
situated in between the properties.
(ii) On 13.1.2005, at about 8.00 a.m., 7 years old son of PW.1, named Siva
was playing in front of PW.1’s house. He did not return for a long time. Then
PW.1, PW.2 and all the family members were made a search for him. It was also
brought to the notice of the public by making publicity in the news papers and
even then, the child could not be traced out. Then PW.1 went to the respondent
police station and gave a complaint under Ex.P.1 to the Sub-Inspector of Police
PW.18. On the strength of Ex.P.1, he registered a case in Crime No.78/2005 for
“boy missing”. Printed F.I.R. Ex.P.14 along with complaint Ex.P.1 was sent to
the Court and to the higher officials.
(iii) On receipt of copy of the F.I.R., PW.19, the Inspector of Police,
proceeded to the house of PW.1, made an inspection in front of the house of PW.1
in the presence of witnesses and prepared an Observation Mahazer Ex.P.6 and also
a rough sketch Ex.P.15. He recorded the statements from PW.1, PW.2 and PW.3.
(iv) While the matter was pending investigation, on 16.1.2005, when PW.9
was in his house, the accused/appellant appeared before him and he made a
confession to the effect that it was he who murdered the child. PW.9, in turn,
took him to PW.10 V.A.O. PW.10 took the accused to the respondent police
station at about 10.45 a.m. on 16.1.2005 when the Inspector of Police was in the
Station. He gave a confessional statement in the presence of witnesses to
PW.19. The admissible part of that confessional statement was marked as Ex.P.17.
He then converted the case of boy missing for offences under sections 364 and
302 IPC. Amended F.I.R. Ex.P.16 was despatched to the Court and to the higher
officials. Then, he proceeded to the place of occurrence. There also he
prepared an Observation Mahazer Ex.P.19 and a Rough Sketch Ex.P.18. He
recovered MO.1 cricket bat and MO.2 cricket ball in the presence of witnesses
under the cover of mahazer Ex.P.4.
(v) Pursuant to the confession, it was the accused who took the police
party to the place of occurrence viz., well, wherefrom the dead body of was
taken out. The investigator conducted inquest on the dead body in the presence
of witnesses and panchayatdars and prepared Ex.P.20 Inquest Report. The dead
body was subjected to post-mortem by PW.15 Doctor, attached to the Government
Hospital, Palani. He also gave a post-mortem certificate Ex.P.19. He also
deposed to the effect that the child was died out of asphyxia by drowning.
(vi) The place of occurrence and the dead body of the child was
photographed. The skull and other parts of the body was sent for tests.
Ex.P.13 was the Superimposition report, which revealed that it was the dead body
of the child. Ex.P.26 was the Biological Report.
(vii) All the material objects recovered from the place of occurrence and
from the dead body were placed before the lower Court.
(viii) On completion of the investigation, PW.19, filed a final report
against the accused/appellant as per the charges. The case was committed to the
Court of Sessions. Necessary charges were framed.
3. In order to substantiate the charges levelled against the accused, the
prosecution examined 19 witnesses and relied on 27 Exhibits and 4 MOs. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. on the incriminating circumstances found in
the evidence of the prosecution witnesses, which was flatly denied by the
accused/appellant as false. On the side of the defence, neither witness was
examined nor exhibit was marked. The trial Court after hearing the arguments
advanced by either side and on considering the materials available on record,
took the view that the prosecution had proved the case beyond reasonable doubts
and found the accused/appellant guilty of the charges and awarded punishments as
referred to above, which is the subject matter of the appeal before this Court.
4. Advancing his arguments on behalf of the appellant, Mr. D.Venkatesh,
learned counsel appearing for the appellant, would submit as follows:-
(i) The entire case of the prosecution rested on the circumstantial
evidence. The prosecution mainly rested upon two circumstances. Firstly, it
was PW.5 who saw the accused taking the child at about 8.30 a.m., on 13.1.2005.
Secondly, when the accused was returning from the scene of occurrence, he was
intercepted by PW.6. thus, these two circumstances, according to the
prosecution, would indicate the complicity of the offender. But, at no stretch
of imagination, these circumstances would connect the accused to the crime.
PW.6 was none else than the matrimonial uncle of PW.1. According to him, he
knew about paper publication and also child missing on 13.1.2005 itself. When
that being so, one would expect to speak about that he saw the child in the
company of the accused but till 16.1.2005, he had not opened his mouth. It
would be an indicative of the fact that he was an interested witness in the
case. Apart from that, he belonged to some other village.
(ii) The place of occurrence was a well situated in sugarcane fields and
there were a lot of houses situated in and around the well and field but no one
was examined.
(iii) Though PW.6 gave evidence to the effect that he saw the accused
coming near the place of occurrence, that by itself can not connect the accused
to the crime.
(iv) In the instant case, PW.15, Doctor who conducted post-mortem, has not
given any final opinion as to the cause of death in the post-mortem certificate
Ex.P.9.
(v) Even PW.4, who spoke about the panchayat, could not say the date or
the month of the panchayat held. Thus, it was nothing but a false case foisted
against the appellant/accused.
(vi) The lower Court has not considered any one of these aspects. Hence,
the accused/appellant is entitled for acquittal in the hands of this Court.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions.
6. The Court paid its utmost attention to the submissions and made a
thorough scrutiny on the entire materials available on record.
7. It is not a fact in controversy that 7 years old child of PW.1 was
found dead in a well. The dead body was subjected to post-mortem by Doctor
PW.15, who also deposed before the Court that the child appeared to have died of
asphyxia due to drowning. The identity of the child was proved by
superimposition test and PW.1 has also identified the child to the investigator.
Insofar as the aspect of identity of the child and also the cause of death leave
no doubt in the minds of the Court.
8. True, the prosecution had no direct evidence to offer but it relied on
three circumstances as could be seen from the available materials. Firstly,
PW.5, the coconut vendor, found the accused taking the child at about 8.30 a.m.,
on 13.1.2005. PW.5 is neither interested in the prosecution witness nor
inimical to the accused. According to PW.1, the child was playing outside his
house. In the instant case, there were strained relationship between the
parties. PW.4 was the person who spoke about the panchayat in respect of
dispute between families over a passage abutting to the house of PW.1. Even in
that panchayat, the accused was not ready to abide by the decision taken by the
panchayat. Thus, the relationship was originally strained. PW.5 an independent
witness has spoken about the fact that the child was taken at about 8.30 a.m.,
on 13.1.2005. Thereafter, the child was not found.
9. PW.1 and others made search of the child on 13.1.2005, 14.1.2005 and
15.1.2005 but in vain. Hence, PW.1 went to the police station and gave a
complaint under Ex.P.1 on 16.1.2005.
10. The reading of Ex.P.1 would clearly indicate that he had not spoken
anything about the accused but they simply spoke about the fact that the child
was playing outside the house and found to be missing. At this juncture, it is
pertinent to point out that, no motive can be attributed to PW.1 that he has
given a false case.
11. The strong circumstance, in the instant case, against the accused is
that he appeared before PW.9 to whom he gave extra judicial confession and
pursuant to which, he was taken to V.A.O. PW.10 and thereafter, PW.9 and PW.10
had taken the accused to the respondent police station. At this juncture, it is
pertinent to point out that, following the confession given by the accused to
the police officer, it was the accused who identified the well in which the dead
body of the child was found. Had the accused not pointed out the place of the
occurrence viz., the well, wherein the dead body was found, the police could not
have found the dead body of the child. This, in the opinion of the Court, is a
strong circumstance in favour of the prosecution.
12. Further, in the instant case, immediately, after the occurrence, it
was PW.6, who saw the accused nearby the place of occurrence. When he was
questioned, the accused answered him that he was returning after seeing a known
person.
13. All these would go to show that there were evidence to indicate that
it was the accused who took the child as the same was last seen by PW.5 and
after the occurrence, it was PW.6 who intercepted and asked the accused
wherefrom he was coming, and on being pointed out by the accused after giving
confession, the police went to the place of occurrence and found the dead body
of the child in the well.
14. All these would go to show that there were sufficient circumstances
pointing to the complicity of the offender. Hence, applying the test what is
necessary in a case which rests on circumstantial evidence, in the present case,
the Court is satisfied that there were sufficient circumstances placed and
proved by the prosecution pointing out to the guilt of the accused.
15. The lower Court was perfectly correct in finding the accused guilty
as per the charges. There is nothing to interfere with the judgment of the lower
Court either factually or legally. Hence, the judgment of the lower Court has
got to be affirmed and accordingly, affirmed. The Criminal Appeal fails and the
same is dismissed.
asvm
To
1.The Principal Sessions Judge,
Dindigul.
2.The Inspector of Police,
Palani Adivaram Police Station,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
Madurai.