{"id":170843,"date":"2003-08-18T00:00:00","date_gmt":"2003-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moorthy-vs-state-by-inspector-of-police-on-18-august-2003"},"modified":"2018-05-05T12:46:13","modified_gmt":"2018-05-05T07:16:13","slug":"moorthy-vs-state-by-inspector-of-police-on-18-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moorthy-vs-state-by-inspector-of-police-on-18-august-2003","title":{"rendered":"Moorthy vs State By Inspector Of Police on 18 August, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Moorthy vs State By Inspector Of Police on 18 August, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 18\/08\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE N.DHINAKAR\nAND\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nCRIMINAL APPEAL NO.296 of 1995\n\nMoorthy                                                .. Appellant\n\n-Vs-\n\nState by Inspector of Police\nLaw & Order\nTirukkalikundrum Circle                 .. Respondent\n\n        This criminal appeal is preferred under Sec.374 (2)  of  The  Code  of\nCriminal Procedure against the judgment of the Sessions Judge, Chengalpattu in\nS.C.No.84\/1993, dated 25.1.1995.\n\n!For Appellant :  Mr.K.Veeraraghavan\n\n^For Respondent :  Mr.S.Jayakumar\n                Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
\n        The  sole  accused  who  stood  charged,  tried and found guilty under
\nSec.302 of I.P.C.  (2 counts) and sentenced  to  life  imprisonment  each  has
\nbrought forth this appeal.\n<\/p>\n
        2.   The  brief facts necessary for the disposal of this appeal can be
\nstated thus:\n<\/p>\n
        (a)  P.W.1   Subbarayan,   a   Village   Administrative   Officer   of
\nMamallapuram,  on  information from his Thalayari, went to the seashore temple
\nand found the dead body of a male child namely Veeramani aged 4  or  5  years.
\nHe proceeded  to  Mamallapuram  Police  Station  and gave a complaint.  On the
\nstrength of the complaint Ex.P1, P.W.16 Manokaran, Sub  Inspector  of  Police,
\nregistered a  case in Crime No.694\/92 under Sec.302 of I.P.C..  Ex.P27 printed
\nF.I.R.  was despatched to the concerned Judicial Magistrate’s Court.    P.W.17
\nRanganathan, Inspector  of  Police, on receipt of the copy of the F.I.R.  took
\nup the investigation, proceeded to the site, where the dead body was found, at
\n7.00 A.M.  on 16.9.1992.  He made  an  observation  in  the  presence  of  two
\nwitnesses and  prepared  Ex.P28  mahazar and Ex.P29 rough sketch.  The site of
\noccurrence  was  caused  to  be  photographed,  and  Ex.P12  (series)  is  the
\nphotographs with  negatives.   The Investigating Officer conducted the inquest
\nin the presence of the witnesses and  prepared  Ex.P30  inquest  report.    He
\nexamined the  witnesses  and  panchayatars  at  the  time of inquest.  Through
\nP.W.14 Elumalai, a constable, he sent the dead body of  Veeramani  along  with
\nEx.P14  requisition  for the purpose of conducting autopsy on the dead body of
\nthe child.\n<\/p>\n
        (b) P.W.15 Dr.Vadivelu, a Professor of Forensic Medicine, Chengalpattu
\nMedical College, Chengalpattu, conducted the autopsy on the dead body  of  the
\nmale child and found the following injuries.\n<\/p>\n
Injuries:\n<\/p>\n
1)  Cut injury horizontal seen on the front of neck 4 x 2 x 1 cms, cutting the
\nskin, muscles, blood vessels (Jugular veins).  Irachea  slightly  injured  and
\ncontained portion of food materials (Aspirated).\n<\/p>\n
2) Old scar 1 cm in diameter seen on the front of right knee, partly healed.\n<\/p>\n
3)  Partly  healed  wound  seen  on  the  front  of Right ankle (leg) 1 cms in
\ndiameter.\n<\/p>\n
The Doctor has issued Ex.P24, the post mortem certificate, and has opined that
\nthe deceased would appear to have died of shock and  haemorrhage  due  to  cut
\ninjury on the neck.\n<\/p>\n
        (c) On 17.9.1992, P.W.1, V.A.O., got information that a dead body of a
\nfemale  child by name Lalitha was found near Karukkathamman Temple situated on
\nthe Mamallapuram Tirukkalikundram Road, and he proceeded to the spot and found
\nthe dead body.  Thereafter, he went to Mamallapuram Police Station and gave  a
\ncomplaint under  Ex.P3.    P.W.16, the Sub Inspector, on the strength of Ex.P3
\nregistered a case in Crime No.6 95\/92 under Sec.302  of  I.P.C.    Ex.P28  the
\nprinted F.I.R.    was despatched to the concerned Judicial Magistrate’s Court.
\nOn receipt of the copy of the F.I.R.,  P.W.17,  the  Inspector,  took  up  the
\ninvestigation,  proceeded to the spot at about 11.00 A.M., made an observation
\nof the site and prepared Ex.P4 mahazar and Ex.P31  rough  sketch.    From  the
\nsite, he  recovered M.Os.1 to 5 under a cover of Ex.P5 mahazar.  The dead body
\nof female child was photographed.  Ex.P13 (series)  is  the  photographs  with
\nnegatives.   On  the  dead  body  of  the said female child, the Investigating
\nOfficer conducted an inquest between 2.00 P.M.  and 3.00 P.M.    and  prepared
\nEx.P32 inquest report.  He examined the witnesses and panchayatars at the time
\nof inquest.    An intimation was given to the Forensic Science Department, and
\nP.W.12 Mohan, a Scientific Assistant, came to the spot and collected M.Os.1 to\n<\/p>\n
5.  The dead body of the female child was sent  through  P.W.13  Kuppusamy,  a
\nConstable, for the purpose of postmortem.\n<\/p>\n
        (d)  P.W.15,  the  Doctor, on receipt of the requisition conducted the
\nautopsy on the dead body of the female child on the morning of 17.9.1 992  and
\nfound the following injuries.\n<\/p>\n
Injuries:\n<\/p>\n
1) Lacerated wound 8 x 8 cm bone deep on the left side of scalp near vertex.\n<\/p>\n
2) Lacerated  wound  on  the  left  side  back of scalp and lt.  side temporal
\nregion exposing bone 11 x 3 x 3 cm exposing depressed comminuted  fracture  of
\nthe left side skull; Brain  exposed.\n<\/p>\n
3) Lacerated wound  12 x 8 x 2 cm on the Lt.  side face exposing lt.  side jaw
\nand upper side of the face.  Left ear torn and disfigured.  Plenty of  maggots
\nseen crawling.\n<\/p>\n
4) Lacerated  wound  11  x  9  cm  bone  deep on the Rt.  side temporal region
\ninvolving the Rt.  side face and Rt.  ear.  Linear crack fracture seen on  Rt.
\nside skull.\n<\/p>\n
5) Upper central four incisors and Lower central three incisors found broken.\n<\/p>\n
6) On reflecting the scalp, contusion seen on the frontal region of the scalp.
\nThe  Doctor has issued Ex.P26, the postmortem certificate, and has opined that
\nthe deceased would appear to have died of head injuries sustained by her.\n<\/p>\n
        (e) The  Investigating  Officer  took  up  further  investigation  and
\nexamined  P.Ws.2,  3  and  4  at the Government Hospital, Chengalpattu on 24.9
\n.1992, when they identified the dead bodies of  the  children.    He  examined
\nP.W.6  Ekambaram,  who  was  running  a  petty  shop  on  the relevant date at
\nMamallapuram.  P.W.6 has stated that the accused took both the children to his
\nshop; that he purchased Rasna from his shop and gave  to  the  children;  that
\napart  from  that,  he  also  purchased  a blade in his shop; that he took the
\nchildren towards Beach; that sometime thereafter, he returned  only  with  the
\nfemale child;  and  that  the  children  were  found  with tonsure heads.  The
\naccused was arrested at 12.00 Noon on 29.9.1992, when he made  a  confessional
\nstatement voluntarily  in  the  presence  of P.W.4 Ponnusamy and Danabal.  The
\nInvestigating Officer recorded the same, and the  admissible  portion  of  the
\nconfessional statement  is  marked  as  Ex.P33.   Pursuant to the confessional
\nstatement, the accused  took  the  Investigating  Officer  to  his  house  and
\nproduced  M.Os.8  to 11, which were recovered under a cover of Ex.P34 mahazar.
\nHe examined the other witnesses and recorded their statements.   He  proceeded
\nto Madras  and  examined  the  witnesses  and  recorded their statements.  The
\naccused was remanded to judicial custody.  All the material objects seized and
\nrecovered at the time of investigation, were sent to the Judicial Magistrate’s
\nCourt along with a requisition for analysis.  Accordingly the material objects
\nwere sent to Forensic Science Department for analysis, and the reports of  the
\nChemical Analyst and Serologist were marked as Exs.P17 to P20.\n<\/p>\n
        (f)  The  Investigating  Officer  placed Ex.P11 requisition before the
\nChief Judicial Magistrate, Chengalpattu for recording the  statements  of  the
\nwitnesses P.Ws.1 to 5 under Sec.164 of Cr.P.C.  As per the orders of the Chief
\nJudicial  Magistrate,  P.W.10  Tmt.Tharani,  Judicial Magistrate, recorded the
\nstatement of P.Ws.2 to 7 under Sec.164 of Cr.P.C.  The statement of P.W.2, the
\nwife of the appellant\/accused, is marked as Ex.P6.  The Investigating  Officer
\nexamined all other witnesses and on completion of the investigation, filed the
\nfinal report under Sec.302 of I.P.C.  against the accused.\n<\/p>\n
        3.   In  order  to  prove  the charges levelled against the appellant\/
\naccused, the prosecution marched 17 witnesses and marked 34  exhibits  and  13
\nmaterial objects.    On  completion  of  the  evidence of the prosecution, the
\naccused was questioned under Sec.313 of  Cr.P.C.    as  to  the  incriminating
\ncircumstances  found  in  the  evidence of the prosecution witnesses, which he
\nflatly denied as false.  No defence was examined.   No  exhibits  or  material
\nobjects were  marked.   On consideration of the rival submissions and scrutiny
\nof the materials available, the learned Sessions Judge found him guilty as per
\nthe charges and sentenced to undergo life  imprisonment  each.    Hence,  this
\nappeal.\n<\/p>\n
        4.   Arguing  for  the  appellant, the learned Counsel with vigour and
\nvehemence made the following submissions for consideration of this Court:\n<\/p>\n
        In  the  instant  case,  the  prosecution  has  relied  only  on   the
\ncircumstantial evidence,  and  no  direct  evidence  was  available.  But, the
\nprosecution has not even proved one circumstance pointing to the guilt of  the
\naccused.   The  prosecution  has relied on the evidence of P.Ws.2, 4, 6 and 7,
\nbut all of them have turned hostile.  It is true that the statements of  those
\nwitnesses  including  P.W.2,  the  wife  of  the appellant were recorded under
\nSec.164 of Cr.P.C.  But, P.W.2, the main  witness,  has  thoroughly  retracted
\nfrom  her  earlier  version  and  has not whispered even a word connecting the
\naccused.  It is well settled position of law  that  the  retracted  confession
\ncannot be  relied upon for any purpose.  But, surprisingly the lower Court has
\nstated  that  the  statement  subsequently  retracted  was  available  to  the
\nprosecution partly.  The lower Court has given unnecessary weight and reliance
\non  the  evidence of P.W.5, a shop keeper at Mamallapuram, who has stated that
\nthe accused came with the children to his shop about one and half years  back.
\nIt is highly improbable and unbelievable that P.W.5 could remember the accused
\nwhen  hundreds  of  people  are  visiting  a  tourism place like Mahabalipuram
\neveryday.  No identification parade was conducted to identify the appellant by
\nthe said witness.  Thus, there was thorough lack  of  legal  evidence  in  the
\ncase.   Without  proper  appreciation  of the facts and circumstances and with
\nlack of evidence, the trial Court has found the accused guilty, and hence,  he
\nis entitled for an acquittal.\n<\/p>\n
        5.   The  learned  Additional  Public Prosecutor opposing strongly the
\nabove contentions would submit that it is true that the prosecution relied  on
\nthe   circumstantial   evidence,  but  all  circumstances  relied  on  by  the
\nprosecution have  been  thoroughly  proved;  that  the  lower  Court  only  on
\nappreciation of the circumstances has found him guilty, and hence, there is no
\nmerit in the appeal, and the same has got to be dismissed.\n<\/p>\n
        6.   As  could  be  seen above, in the instant case, the accused stood
\ncharged of murdering his two children.  The fact that both the children namely
\nVeeramani aged 4 years and Lalitha  aged  7  years  met  their  death  due  to
\nhomicidal violence  is not disputed by the appellant\/ accused.  That apart, in
\norder to prove the same, the prosecution has relied on the evidence of P.W.15,
\nthe Postmortem Doctor and Exs.P24 and P26 , the postmortem certificates issued
\nby him.  P.W.15, the Doctor, has opined that the girl Lalitha would have  died
\nof  head  injuries;  and  that  the boy Veeramani would have died of shock and
\nhaemorrhage due to cut injury on the neck.  In view of the  same,  it  can  be
\nsufficiently held that both the children died due to homicidal violence.\n<\/p>\n
        7.   True it is that no direct evidence was available in the case, and
\nthe prosecution has rested its case solely on the circumstantial evidence.   A
\ncareful  scrutiny of he evidence and the available materials would lead to the
\nirresistible conclusion that the prosecution has proved the charges by placing
\ncomplete chain of circumstances.  Concededly, the  appellant\/accused  and  his
\nwife  P.W.2  along  with  the  children Veeramani and Lalitha were residing in
\nAdavampakkam Village, and both the children were put in education in a  School
\nsituated near   to  their  residence.    According  to  the  prosecution,  the
\noccurrence has taken place on 15.9.92.  P.W.2  whose  statement  was  recorded
\nunder Sec.164  of  Cr.P.C.   by P.W.10, the Judicial Magistrate, has retracted
\nthe same at the time of evidence.  But, her  evidence  was  available  to  the
\nprosecution  to  the  extent  that both the children went to the School on the
\nmorning of 15.9.1992.  Both P.Ws.8 and 9, the Teachers of the said educational
\ninstitution, through whom Exs.P9 and P10  attendance  registers  were  marked,
\nhave  deposed  that  both the children did not attend the School on 15.9.1992.
\nIt is not in dispute that both the children,  who  went  to  the  School  that
\nmorning, did  not  return  till  night.   The first circumstance that would go
\nagainst the appellant\/accused as a responsible father, was  that  he  did  not
\neven attempt  to  search  for the children on all the future days also.  P.W.2
\nalong with others has identified the dead bodies in the  Government  Hospital,
\nChengalpattu on 24.9.1992 to the Investigating Officer pending investigation.\n<\/p>\n
        8.   P.W.5,  a  petty shop owner, has deposed that he was conducting a
\npetty shop at Mamallapuram; that one day when his business was  not  busy,  he
\nwas  sitting outside the shop; that at that time, the accused brought a female
\nchild and a male child, purchased Rasna and gave to the children; that he also
\npurchased a blade and took both the children  towards  beach  side;  and  that
\nsometime thereafter,  he  returned  only  with  the  female  child.    He  has
\nidentified the accused  before  the  trial  Court.    The  contention  of  the
\nappellant’s side that no identification parade was conducted, and it is highly
\nimprobable for a person like P.W.5, a shop keeper, to identify, and hence, his
\nevidence is highly unbelievable has to be discountenanced for the reasons that
\nP.W.5  has  categorically  deposed  that  at  that time, the appellant\/accused
\nbrought both the children; that his business was not busy that  day;  that  he
\nwas  sitting  outside the shop; that both the children were found with tonsure
\nheads; that the accused purchased Rasna and gave to the  children;  and  apart
\nfrom that,  he  purchased  a blade also.  Hence, it would not be difficult for
\nP.W.5 to remember the identity of the accused.\n<\/p>\n
        9.  Yet another strong circumstance against the appellant\/accused  was
\nthe  recovery  of M.Os.8 to 9 clothes and M.O.11 blade, which were seized from
\nthe accused by the Investigating  Officer  pursuant  to  the  confession  made
\nvoluntarily  by the accused at the time of his arrest in the presence of P.W.4
\nPonnusamy and another.  The said material objects were subjected  to  chemical
\nanalysis, and Chemical Analyst’s report and Serologist’s report were received.
\nThrough  the scientific evidence it was proved that M.Os.6 and 8 were found to
\ncontain human  blood.    From  16.9.92  till  his  arrest  on   29.9.92,   the
\nappellant\/accused was  absconding.   Ordinarily, the abscondance of an accused
\ncannot be taken as a circumstance pointing to the guilt of the accused.   But,
\nin  the  instant  case, it remains to be stated that the appellant\/accused was
\nthe father of both the children murdered.  He has no explanation to tender why
\nhe did not take any steps to trace the children, when they did not return from
\nthe School on the evening of 15.9.92.  But, from the evidence of P.Ws.8 and  9
\nthe  School  Teachers,  it  would  be  clear that they even did not attend the
\nSchool that day.  The murder of the male child has taken place  on  the  beach
\nside  of Mamallapuram, while the murder of the female child has taken place on
\nthe road side near a temple at Mamallapuram Tirukkalikundram Road.   From  the
\nevidence  of  P.W.5, who has clearly identified the accused, it would be quite
\nclear that the appellant\/accused has purchased a blade from his shop  and  the
\nbroken  blades  have  also  been  recovered  marked  as M.O.11 pursuant to the
\nconfession made by him.\n<\/p>\n
        10.  According to the Postmortem Doctor, the male child  died  due  to
\nshock and  haemorrhage  and profused bleeding.  The Doctor has also added that
\nthe death of the female child was caused by the fracture on the skull, and the
\nsame could be caused by 9.50 kilos stone found with bloodstains recovered from
\nnear the dead body.  The said stone was also subjected to  chemical  test  and
\nfound with human blood.  In view of all the totality of the circumstances, the
\nCourt is of the considered view that all the above circumstances would clearly
\nadumbrate  that  no  one except the appellant\/accused would have committed the
\nmurder of both the children.  Taking into consideration  that  the  appellant\/
\naccused  was  the  father  of  both the children of tender age, the act of the
\naccused was one merciless and of utmost cruelty and brutality, and  thus,  the
\nlower  Court  was  perfectly  correct  in  finding him guilty under Sec.302 of
\nI.P.C.  (2 counts) and awarding life imprisonment each.  The Court  is  unable
\nto see any merit in this appeal.\n<\/p>\n
        11.   In the result, this criminal appeal is dismissed, confirming the
\njudgment of the lower Court.  The Sessions Judge shall take  steps  to  commit
\nthe  accused  to  prison, if he is on bail, to undergo the remaining period of
\nsentence.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
To:\n<\/p>\n
1) The Principal Sessions Judge, Chengalpattu.\n<\/p>\n
2) The Judicial Magistrate, Thirukazhikundram.\n<\/p>\n
3) The Judicial Magistrate, Thirukazhikundram,
\nThro’ The Chief Judicial Magistrate, Chengalpattu.\n<\/p>\n
4) The District Collector, Chengalpattu.\n<\/p>\n
5) The D.G.P., Chennai.\n<\/p>\n
6) The Superintendent, Central Prison, Vellore.\n<\/p>\n
7) The Public Prosecutor, High Court, Madras.\n<\/p>\n
8) The Inspector of Police (L & O), Madras.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Moorthy vs State By Inspector Of Police on 18 August, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18\/08\/2003 CORAM THE HONOURABLE MR.JUSTICE N.DHINAKAR AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM CRIMINAL APPEAL NO.296 of 1995 Moorthy .. Appellant -Vs- State by Inspector of Police Law & Order Tirukkalikundrum Circle .. Respondent […]<\/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-170843","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMoorthy vs State By Inspector Of Police on 18 August, 2003 - 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\/moorthy-vs-state-by-inspector-of-police-on-18-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moorthy vs State By Inspector Of Police on 18 August, 2003 - 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