{"id":150867,"date":"2010-07-07T00:00:00","date_gmt":"2010-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/selvam-vs-theni-district-on-7-july-2010"},"modified":"2016-07-19T06:20:54","modified_gmt":"2016-07-19T00:50:54","slug":"selvam-vs-theni-district-on-7-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/selvam-vs-theni-district-on-7-july-2010","title":{"rendered":"Selvam vs Theni District on 7 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Selvam vs Theni District on 7 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 07\/07\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE M.DURAISWAMY\n\nCrl.A.(MD).No.128 of 2009\nCrl.A.(MD).No.131 of 2009\nand\nCrl.A.(MD).No.147 of 2009\n\n\nSelvam  \t ..  Appellant in Crl.A.(MD).No.128\/2009\/A6\n\nAyyachamy alias\n Rasu Iyar       .. Appellant in Crl.A.(MD).No.131\/2009\/A4\n\n1.Malliga\n2.Muniyandi\n3.Kaliammal      .. Appellants in Crl.A.(MD).No.147\/2009\/\n\t\t\tA1 to A3\n\nVs\n\nThe State through the\nInspector of Police\nPalanichetty patty Police Station in\nCr.No.225\/2005\nTheni District.   ..  Respondent in all the appeals\n\n\nPRAYER\n\nThese criminal appeals have been preferred under Section 374 Cr.P.C  to\ncall for the records and set aside the conviction and sentence imposed on the\nappellants dated 31.03.2009 made in S.C.No.17\/2007 by the Additional Sessions\nJudge (Fast Track Court), Periyakulam.\n\n!For Appellants  ...  Mr.S.Jothimani for A6\n \t\t      Mr.M.Subash Babu for A4\n\t\t      Mr.D.Malaichamy for A1 to A3\n^For Respondent  ...  Mr.Danieal Manoharan\n\t\t      Addl.Public Prosecutor\n\t\t\t\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was  made by \tM.CHOCKALINGAM, J.)<\/p>\n
\tThis judgment shall govern these three appeals, namely Crl.A.(MD).No.128
\nof 2009 by A6, Crl.A.(MD).No.131 of 2009 by A4 and Crl.A.(MD).No.147 of 2009 by
\nA1 to A3. All these appellants along with one accused who is ranked as A5 stood
\ncharged and tried by the learned Additional District and Sessions Court
\n(F.T.C.), Periyakulam in S.C.No.17 of 2007 for the following charges;\n<\/p>\n
Accused             Sections\n\nA1            302 315 and 201 IPC\nA2            315 and 201 IPC\nA3            315 and 201 IPC\nA4            315 and 201 IPC\nA5               201 IPC\nA6            302 r\/w 109 IPC\n\n<\/pre>\n
On trial, A1 was convicted under Sections 302 and 201 IPC and awarded life
\nimprisonment along with a fine of Rs.5,000\/-, with a default sentence of six
\nmonths simple imprisonment for the offence under Section 302 IPC and seven years
\nrigorous imprisonment along with fine of Rs.2,000\/-, with a default sentence of
\nthree months simple imprisonment; A2 to A4 were convicted under Sections 315 and
\n201 IPC and awarded 10 years rigorous imprisonment along with a fine of
\nRs.3,000\/- each, with a default sentence of four months simple imprisonment for
\nthe offence under Section 315 IPC and seven years rigorous imprisonment along
\nwith fine of Rs.2,000\/- each, with default sentence of three months simple
\nimprisonment for the offence under Section 201 IPC; A5 was convicted for the
\noffence under Section 201 IPC and awarded seven years rigorous imprisonment
\nalong with a fine of Rs.2,000\/-, with a default sentence of three months simple
\nimprisonment; A6 was convicted for the offence under Section 302 r\/w 109 IPC and
\nawarded life imprisonment along with fine of Rs.5,000\/-, with a default sentence
\nof six months simple imprisonment. Hence the appeals are at the instance of A1
\nto A4 and A6.\n<\/p>\n
\t2. The short facts necessary for the disposal of these appeals can be
\nstated as follows:-\n<\/p>\n
\t(i) A1 is the daughter of A2 and A3. A4 is a close relative of A1. The
\nfirst accused developed illicit intimacy with A6, who was already married and
\nhad children. Pursuant to the illicit intimacy, she became pregnant. When it
\ncame to the knowledge of A6, he was pressurising her to have an abortion. Apart
\nfrom that, there was a Panchayat convened on 14.06.2005 in which it was decided
\nthat A6 should pay Rs.10,000\/- to A1 and she should not proceed against him
\nthereafter and it was also decided if a child was born alive, it must be killed.\n<\/p>\n
\tii) On 18.06.2005 a child was born in the clinic of P.W.2 and the child
\nwas alive. P.W.2 has deposed that the child was born alive and it was handed
\nover to A1 at the morning hours on 17.06.2005. After getting the child, A1 to A3
\nwent to the hut of A4 situated near to the clinic, where A1 pressed the chest of
\nthe child and caused the death. This was known to A4 also. The dead body of the
\nchild was handed over to A4, who in turn handed over the same to A5. A5 took the
\ndead body of the child in a fertilizer bag to the burial ground. When P.W.1, the
\nVillage Administrative Officer, Allinagaram Village, Theni came along with his
\nmenial found A5 with fertilizer bag in her hand near the burial ground and
\nentertaining suspension he questioned her. Then A5 in turn replied that the dead
\nbody of the child was handed over to her by the accused persons in order to bury
\nthe same. Immediately P.W.1 took A5 to the police station and gave Ex.P1,
\ncomplaint.\n<\/p>\n
\tiii) On the strength of Ex.P1, complaint, P.W.12, the Sub Inspector of
\nPolice of the respondent station registered a case in Cr.No.225 of 2005 under
\nSections 315 and 320 IPC. The printed FIR Ex.10 along with Ex.P1, the complaint
\nwas despatched to the Court concerned and to the higher officials.\n<\/p>\n
 \tiv) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of
\nthe Circle, took up investigation, proceeded to the spot, made an inspection in
\nthe presence of witnesses and prepared an Observation Mahazar Ex.P5 and a rough
\nsketch Ex.P15.\tThe investigator conducted inquest on the dead body of the
\nchild in the presence of the witnesses and panchayatdars and prepared an inquest
\nreport, which was marked as Ex.P.16.\n<\/p>\n
\t\tv)\tFollowing the same, the dead body of the child was sent to the
\nGovernment Hospital, for the purpose of autopsy. On receipt of the requisition
\nmade by the investigator Ex.P11, the Doctor, P.W.13, attached to Government
\nTheni Medical College, conducted autopsy on the dead body of the child and
\nissued Ex.P.12, the post-mortem certificate, and opined that the child died due
\nto the injuries sustained on the Chest and also on the brain.\n<\/p>\n
\tvi) Pending investigation, on being identified, P.W.14 arrested A1 to A5
\nand they were also sent for judicial remand. P.W.17, arrested A6 and at the time
\nof arrest A6 came forward to give a confessional statement voluntarily in the
\npresence of witnesses, and the admissible part of the confessional statement of
\nA6 was marked as Ex.P.6. Pursuant to which, Ex.P8 document was produced by him
\nand the same was recovered under a cover of mahazar Ex.P.17.\n<\/p>\n
\tvii) On completion of the investigation, the Investigating Officer has
\nfiled the final report. The case was committed to the court of sessions and
\nnecessary charges were framed.\n<\/p>\n
\tviii) In order to substantiate the charges, at the time of trial, the
\nprosecution examined 17 witnesses and relied on 24 exhibits and 3 material
\nobjects.  On completion of the evidence on the side of the prosecution, the
\naccused\/appellants were questioned under Section 313 Cr.P.C. as to the
\nincriminating circumstances found in the evidence of prosecution witnesses. They
\ndenied them as false.  Neither any witness was examined nor any document was
\nmarked on the side of the defence.\n<\/p>\n
\tix) After hearing the arguments of the learned counsel and looking into
\nthe materials available, the trial court took the view that the prosecution has
\nproved the case beyond reasonable doubt and hence, found the accused guilty and
\nawarded the punishment as referred to above. Under these circumstances, these
\ncriminal appeals have arisen at the instance of A1 to A4 and A6\/appellants. A5
\nhas not preferred any appeal challenging the judgment of the trial Court.\n<\/p>\n
\t3. Advancing the arguments on behalf of the appellants, the learned
\ncounsel would submit that in the instant case the prosecution had no direct
\nevidence to offer and it has got only circumstantial evidence. P.W.1 is the only
\nwitness examined by the prosecution to speak about the circumstances relied on
\nby the prosecution. According to P.W.1, when he was coming across the burial
\nground along with his menial, he found A5 having a fertilizer bag in her hand
\nand entertaining suspicion, he asked her and she gave a confessional statement
\nvoluntarily and he immediately took her to the police station and gave Ex.P1
\nreport. The Sub Inspector of Police, P.W.12 on the strength of the report Ex.P1,
\nregistered a case in Cr.No.225 of 2005 for the offence under Sections 315 and
\n302 IPC.\n<\/p>\n
\t4. The learned counsel would further add that in the instant case P.W.1
\ndid not record any statement from A5, but immediately after the reply given by
\nA5 he took her to the police station and gave Ex.P1 report. A perusal of Ex.P1
\nreport and also the evidence given by P.W.1 before the Court would clearly
\nindicate that his evidence has got to be rejected.\n<\/p>\n
\t5. The learned counsel for the appellants urged by placing reliance on the
\nsettled principle of law that the extra judicial confession made by one accused
\nagainst the other accused, is a weak piece of evidence. In the instant case such
\nstatement remained unacceptable and hence the evidence of P.W.1 should be
\nrejected.\n<\/p>\n
\t6. The learned counsel for the appellants took the Court to Ex.P1 wherein
\nit is stated that A5 informed P.W.1 that the dead body of the child was handed
\nover to A5 by A4. On the contrary when P.W.1 gave evidence before the Court, he
\nhas stated that the dead body of the Child was handed over to A5 by A1 while a
\nfew persons were by her side and thus, this material fact is found to be
\ndiscrepant both in the Ex.P1 report and also the evidence of P.W.1 before the
\nCourt and hence, the evidence of P.W.1 should have been rejected.\n<\/p>\n
\t7. In the instant case, it is true that even  in the evidence of P.W.1, he
\ndid not mention the names of any other accused except A1, as if they have been
\non the side of A1, and apart from that, in so far as A4 is concerned, there is
\nno specific evidence to indicate that it was he who handed over the dead body of
\nthe child to A5. It was the case that A5  was taken to police station and a case
\nwas registered and thus, from the evidence available, the only person to be
\nfound guilty is A5 because she has made all attempts to screen the evidence. In
\nrespect of the other appellants as to the murder and as to the handing over the
\ndead body of the child to A5, there is no evidence at all. Under such
\ncircumstances, the appellants should not have been found guilty either under
\nSection 315 or 302 or 201 of IPC for screening the evidence and hence they are
\nentitled for acquittal.\n<\/p>\n
\t8. The Court heard the learned Additional Public Prosecutor on the above
\ncontentions and paid its anxious consideration on the submissions.\n<\/p>\n
\t9. It is not in controversy that pursuant to the registration of the case
\nin Cr.No.225 of 2005 by the respondent police, the Inspector of the police of
\nthe circle,  took up the investigation and after preparation of the inquest
\nreport, the dead body of the child was subjected to postmortem by P.W.13, the
\npostmortem doctor, who has given a categorical opinion that the child died out
\nof the injuries sustained on the ribs and also on the brain. Thus, the
\nprosecution was successful enough in proving the fact that the child died due to
\nhomicidal violence.\n<\/p>\n
\t10. In order to substantiate the charges levelled against the appellants,
\nthe prosecution has no direct evidence to offer and it relied upon the evidence
\nof P.W.1, the Village Administrative Officer. It is needless to say that when a
\nconfessional statement was given by an accused against the other accused, in
\norder to rely on that  the Court should look into other supporting evidence. In
\nthe instant case, even the evidence of P.W.1 was contrary to the report given by
\nhim to the police. On the strength of Ex.P1 report, a case came to be registered
\nand a perusal of Ex.P1 would indicate that when A5 was enquired by P.W.1, the
\nVillage Administrative Officer, A5 has replied that the dead body of the child
\nwas handed over by A4 at the coconut shop. When P.W.1 was examined in Court he
\nhas categorically stated that A5 has informed him that the dead body of the
\nchild was handed over by A1 and a few others and this vital and major
\ndiscrepancy is noticed as to who actually handed over the child to A5 which was
\nbrought by her. Thus, what are all available in the evidence adduced by P.W.1
\nwas only to the extent that the dead body was found in the hands of A5 and she
\nalso informed that the dead body was given to her to screen the evidence and to
\nthat extent A5 is found liable. In so far as the other part of the incident of
\nmurder and handing over the child, the prosecution has no evidence to offer
\nbefore the trial Court. Even the evidence adduced would not satisfy the legal
\nrequirements to prove the charges levelled against the appellants. Under such
\ncircumstances, though the prosecution was able to prove that the child died out
\nof homicidal violence and A5 has got the custody of the dead body of the child
\nand she was actually about to screen the evidence and except this part, the
\nprosecution did not prove any one of the charges levelled against the
\nappellants. Under such circumstances, the judgement of the trial Court is set
\naside in respect of the appellants\/A1 to A4 and A6. Therefore, the appellants
\nare acquitted of all the charges. The fine amount if any paid by the
\nappellants\/A1 to A4 and A6 shall be refunded and the bail bonds executed by the
\nappellants\/A1 to A4 and A6 shall stand cancelled. Accordingly, these three
\nappeals are allowed.\n<\/p>\n
jikr\/sj<\/p>\n
To<\/p>\n
1.The Additional District and Sessions Court
\n  (F.T.C.), Periyakulam.\n<\/p>\n
2.The Inspector of Police
\n  Palanichetty patty Police Station i
\n  Theni District.\n<\/p>\n
3.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Selvam vs Theni District on 7 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-150867","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSelvam vs Theni District on 7 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/selvam-vs-theni-district-on-7-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Selvam vs Theni District on 7 July, 2010 - 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