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2004 DIGILAW 1372 (MAD)

Jayashankar v. Union Territory of Pondicherry

2004-10-19

P.SATHASIVAM, R.BANUMATHI

body2004
Judgment :- R. Banumathi, J. Appellant is the Accused in S.C.No.48 of 2000 on the file of Additional Sessions Judge, Karaikkal. By the Judgment dated 11.12.2001, learned Sessions Judge has convicted the Appellant / Accused under Sec.302 I.P.C and sentenced him to undergo Life Imprisonment and also imposed fine of Rs.1000/-. The Appellant was also convicted under Sec.201 I.P.C and sentenced to undergo Rigorous Imprisonment for three years and also under Sec.354 I.P.C and sentenced to undergo Rigorous Imprisonment for one year. 2. Case of Prosecution could be stated thus:- Deceased Child-Surya alias Manimekalai (hereinafter referred to as “Surya”) is the Daughter of P.W.1-Vaidyanathan. On the afternoon of 08.12.1999, Surya was found playing with one small Scooter Tyre and Stick (M.Os.4 and 5). In the afternoon, the Accused approached P.W.8-Mahalingam and asked for money by pledging the Tiffin Carrier. Later, the Accused gave his Watch (M.O.1) to P.W.8-Mahalingam and taken Rs.50/-. At the request of the Accused, P.W.9-Fasil went to the Toddy Shop for purchase of liquor. At that time, the Accused went to his house. After purchasing liquor for Rs.30/-, P.W.9 came to the house of P.W.8. The Accused also came back to the house of P.W.8. Then the Accused and P.Ws.8 and 9 had consumed liquor. The Accused asked P.Ws.8 and 9 to come with him to his house. Since P.W.8-Mahalingam refused to come with him, the Accused had taken P.W.9 and one Sankar to his house. In the house, the Accused asked P.W.9 to find out what is floating in the Water Pond. P.W.9 and Sankar were reluctant to get inside the Water Pond. Later, the Accused called his Father; the Accused himself got into the Water Pond and had taken the body of the Child – Surya. The body of the Child – Surya was handed over to P.W.17-Premanandam, who in turn handed over to P.W.18-Karthikeyan, Uncle of the Child. 3. Registration of case and Investigation:- On 09.12.1999 – 08.30 a.m. P.W.1-Vaidyanathan lodged Ex.P.1-Complaint in Karaikkal Town Police Station to the effect that his Daughter Surya alias Manimekalai, eight years old was found floating in the Water Pond at Thalatherupet on the backside of the house of the Accused and the cause of the death is not known. On the basis of Ex.P.1-Complaint, P.W.25-Sub-Inspector of Police registered the case in Crime No.494 of 1999 under Sec.174 Crl.P.C. 4. On the basis of Ex.P.1-Complaint, P.W.25-Sub-Inspector of Police registered the case in Crime No.494 of 1999 under Sec.174 Crl.P.C. 4. P.W.25-Sub Inspector of Police had taken up initial Investigation. Scene of occurrence was inspected in the presence of Witnesses. Ex.P.8-Observation Mahazar and Ex.P.16-Rough Sketch were prepared regarding the scene of occurrence. From the scene of occurrence, M.O.4-One Scooter Tyre, M.O.6-one pair of muded Chappals, M.O.7-Small Stick and Sample Mud collected were seized under Ex.P.7-Seizure Mahazar. Witnesses were examined in the presence of Panchayatars and Inquest was held on the body of the deceased Child – Surya. Ex.P.9 is the Inquest Report. 5. After the Inquest, body was sent to Government Hospital, Karaikkal for Post Mortem. Pursuant to requisition from P.W.25-Sub Inspector of Police, P.W.23-Dr.Narasimhamurthy has conducted the Autopsy. He has noted varying sizes of Abrasions all over the body. He has further noted, “...larynx, trachea congested vertical tear in carotid, sheath, artery either side seen, hyoid bone – G, cornua found fractured on left side junction of body....” P.W.23 opined that the death is due to Asphyxia due to throttling. Ex.P.14 is the Post Mortem Certificate. 6. On the basis of the Inquest Report (Ex.P.9) and the opinion of the Doctor-P.W.23 as to the cause of the death, P.W.25-Sub Inspector of Police has altered the case from Sec.174 Crl.P.C to Sec.302 I.P.C. 7. P.W.26-Inspector of Police has taken up the further Investigation. On the basis of evidence and materials collected, Accused-Jayashankar was arrested at Sembanarkoil on 13.12.1999 – 11.30 a.m. When being interrogated, the Accused confessed of the offence and his Confession Statement was recorded under Ex.P.12. Pursuant to his Confession Statement, M.O.8-T-Shirt, M.O.9-Jeans Pant and M.O.10 series – Two buttons were seized under Ex.P.13-Seizure Mahazar. 8. On the basis of the Confession Statement of the Accused, Sec.354 I.P.C was further added to the existing offence under Sec.302 I.P.C. The Accused was sent for Chemical Examination. P.W.24-Dr.K.Sriram examined the Accused and opined that “...there is nothing to suggest that the person Jayashankar is incapable of performing sexual intercourse. No injuries were found on him...” The Accused was remanded to judicial custody on 14.12.1999. Seized material objects were sent to Chemical Analysis. On completion of the formalities of the Investigation, the Accused was charge sheeted for the offences punishable under Sections 302, 201 and 354 I.P.C. 9. No injuries were found on him...” The Accused was remanded to judicial custody on 14.12.1999. Seized material objects were sent to Chemical Analysis. On completion of the formalities of the Investigation, the Accused was charge sheeted for the offences punishable under Sections 302, 201 and 354 I.P.C. 9. In the Trial Court, to substantiate the Charge against the Accused and to establish the circumstances, P.Ws.1 to 26 were examined. Exs.P.1 to P.16 were marked. M.Os.1 to 10 were remanded to Court. The Accused was questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstances against him. The Accused denied all of them and stated that a false case has been foisted against him. 10. In consideration of the evidence, learned Sessions Judge drew inference of guilt from the circumstance that the Child – Surya was drowned in the Water Pond behind the house of the Accused and that the Accused, after taking drinks had forcibly taken P.W.9 and Sankar to near the Water Pond to pose as if the drowning of the Child was accidental. Learned Sessions Judge placed reliance upon the Medical evidence that the death was due to Asphyxia due to throttling and the arrest of the Accused and the recovery of M.Os.8 and 9. Finding that the deceased Child-Surya was sexually molested and the Accused had throttled her Neck and caused destruction of evidence by throwing the body into the Water Pond, learned Sessions Judge convicted the Appellant / Accused for various offences as aforesaid in para (1). 11. Aggrieved over the verdict of Conviction and Sentence, the Appellant / Accused has preferred this Appeal. Attacking the improbabilities of the occurrence, learned counsel for the Appellant / Accused has submitted that the child could not have been sexually molested and throttled to death during the day time without drawing the attention of others. He has further submitted that the circumstantial evidence adduced by the Prosecution is not sufficient to hold the Accused guilty. It is also submitted that the Trial Court has not properly appreciated the Medical evidence (P.W.23) who has deposed that the injuries in the body of the victim could have been caused by fall, which alternative possibility substantially establishes defence version. It is further submitted that the material contradictions in the evidence of Prosecution Witnesses and their Statements recorded under Sec.161(3) Crl.P.C were not properly appreciated. It is further submitted that the material contradictions in the evidence of Prosecution Witnesses and their Statements recorded under Sec.161(3) Crl.P.C were not properly appreciated. The conviction is assailed contending that the circumstances relied upon by the Prosecution are not sufficient to find the Accused guilty and the conviction cannot be sustained. 12. Laying emphasis upon the Medical evidence that the death was due to Asphyxia due to throttling, learned Additional Public Prosecutor for Pondicherry has submitted that the guilty mind of the Accused is manifested through the evidence of P.W.9. Taking us through the evidence of P.W.9, learned Additional Public Prosecutor has submitted that the evidence of P.W.9 would clinchingly shows the conduct of the Accused in insisting P.W.9 and Sankar to come to the Water Pond to bear Witnesses for taking out the body of the Child-Surya which would go a long way in establishing the culpability of the Accused and that the verdict of conviction is well reasoned warranting no interference. 13. We have carefully considered the submissions of both sides, Judgment of the Trial Court and the circumstances relied upon by the Prosecution and the evidence on record to substantiate those circumstances. In our view, the following points arise for our consideration:- i. Whether death is proved to be Homicidal? ii. Whether the Accused is proved to be responsible for the Homicidal death? iii. Whether the conviction of the Appellant for various offences suffer from any infirmity warranting interference? 14. From the facts detailed above, it is clear that the Prosecution relies upon circumstantial evidence. The point for consideration is whether the circumstances relied upon by the Prosecution is proved by reliable and cogent evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be of conclusive nature. More over, all the circumstances should be complete pointing out to the guilt of the Accused. The proved circumstances must be consistent only with the guilt of the Accused and totally inconsistent with his innocence. 15. To establish the guilt of the Accused, the Prosecution relies upon the following circumstances:- i. Evidence of P.W.10-Suseela who has last seen Child-Surya alive along with the Accused; ii. The proved circumstances must be consistent only with the guilt of the Accused and totally inconsistent with his innocence. 15. To establish the guilt of the Accused, the Prosecution relies upon the following circumstances:- i. Evidence of P.W.10-Suseela who has last seen Child-Surya alive along with the Accused; ii. Conduct of the Accused in hurriedly changing his dress and informing P.W.1 to come and see the body and that the body was found floating in the Water Pond behind the backside of his house; iii. Death was Homicide; iv. Subsequent conduct of the Accused; arrest of the Accused and recovery of M.Os.8,9 and 10 under Ex.P.13-Seizure Mahazar. Like in every case based upon circumstantial evidence, in this case also, we are to consider whether all the above circumstances are established and whether the links in the chain of circumstances is so complete so as to rule out the innocence of the Accused. 16. P.W.1-Vaidyanathan is the Brother of P.W.13-Chinthamani. P.W.1 and his Wife-Radha have been residing in Karaikkal-Mathagadi. Differences arose between P.W.1 and his Wife – Radha. Hence, about 10 days prior to the occurrence, P.W.1 came to his Brother’s house (P.W.13) who is residing at Thalatherupet Kaliamman Koil Street. On the afternoon of 08.12.1999, P.Ws.1 and 13 had their Noon Meal and P.W.1 had a snap after the Lunch. Child – Surya had gone out to play with a Scooter Tyre with Stick (M.Os.4 and 7). She was playing in the Street. It is relevant to note that Child – Surya being new to the place could not have been much in know of things. 17. Kaliamman Koil Street is East West Street. The Accused is also residing at Kaliamman Koil Street, Thalatherupet. House of the Accused is situated on the Northern side of the Street. The Water Pond is situated at a distance of about 120 feet on the backside of the house of the Accused. The Water Pond is well separated by Thorny Fence 10 feet lane leads towards North. The house of the Accused and the Water Pond are partly separated by the fence on the East and West side. Under such circumstances, for a Child like Surya, who is new to the place, cannot easily get to the Northern Side of the Water Pond unless being lured. The house of the Accused and the Water Pond are partly separated by the fence on the East and West side. Under such circumstances, for a Child like Surya, who is new to the place, cannot easily get to the Northern Side of the Water Pond unless being lured. For the floating of body of Child – Surya in the Water Pond, the Accused is reasonably expected to offer explanation. The defence has explained that the death was by accidental fall; shortly we would refer that this defence version is not supported by Medical evidence. 18. Case of Prosecution is that Child – Surya was last seen alive in the company of the Accused and that the Accused had taken the Child through the lane adjacent to his house at about 12.00 noon. To establish this vital link, P.W.10-Suseela – Resident of Thalatherupet was examined. On the crucial aspect that the Accused had taken the Child through the lane, P.W.10 has not supported the Prosecution case and on that aspect she turned hostile. Though P.W.10 was treated hostile, it is not as if her evidence is rendered useless. Evidence of P.W.10-Suseela is to the effect that she saw the child - Surya playing on the western side of the road and that the Accused also went on the Western side. Three things emerge from the evidence of P.W.10. i. While the Accused had taken Tobacco from P.W.10, he was found to be wearing Jeans Pant and T-Shirt; ii. Thereafter, the Accused was not seen for about ¾ Hrs; iii. Thereafter, the Accused was found changed his dress to Lungi and Shirt. The above aspects lend assurance to the Prosecution case to the extent that possibly the Accused could have taken the Child. 19. Evidence of P.W.10-Suseela is contradictory to the Prosecution case that she had seen the Child-Surya alive at 02.00 – 02.30 p.m. But as per the Charge, the Accused is alleged to have committed the offence at 12.00 noon. We are to observe that the prevarication regarding time of occurrence is replete through out the Prosecution case. In our considered view, such contradiction regarding the time of occurrence in the Charge and the evidence forthcoming would not in any way affect substratum of the Prosecution case. We are to observe that the prevarication regarding time of occurrence is replete through out the Prosecution case. In our considered view, such contradiction regarding the time of occurrence in the Charge and the evidence forthcoming would not in any way affect substratum of the Prosecution case. Notwithstanding the hostility of P.W.10-Suseela, her evidence goes to prove that Child-Surya was playing on the Western side with a Scooter Tyre and Stick (M.Os.4 and 5) and that the Accused proceeded towards the Western Side. 20. Conduct of the Accused:- The strong piece of evidence relied upon by the Prosecution is the evidence of P.W.9. The evidence forthcoming through P.W.9 regarding the conduct of the Accused is of great importance. According to P.W.9-Fasil, on 08.12.1999 – 02.30 p.m, he and P.W.8 were talking to each other in the house of P.W.8. At that time, the Accused came there asking for money pledging his Tiffin Carrier. Later, the Accused had taken Rs.50/- from P.W.8 by pledging his Watch (M.O.1). The Accused had given Rs.30/- to P.W.9 and asked him to purchase Liquor. When P.W.9 came back, the Accused was not there. P.W.9 was waiting in the house of P.W.8 with Liquor. The Accused came there nearly after ¾ Hrs. P.Ws.8 and 9 and the Accused together consumed Liquor. After so consuming Liquor, the Accused repeatedly insisted P.Ws.8 and 9 to come to his house. After reluctance, P.W.9 accompanied the Accused to his house along with one Sankar and the Accused had taken them to the Water Pond. Showing the floating object – body of deceased Child – Surya, the Accused asked P.W.9 to see as to what is floating in the Pond. P.W.9 informed the Accused that the floating object appears to be a cloth bundle. The Accused also called his Father. After his Father came, the Accused himself got into the Water Pond and taken out the body, thereby attempting to create an impression as if death of the Child – Surya was by accidental fall. The conduct of the Accused in insisting P.W.9 to accompany him to take out the body is only to show as if he knows nothing. After his Father came, the Accused himself got into the Water Pond and taken out the body, thereby attempting to create an impression as if death of the Child – Surya was by accidental fall. The conduct of the Accused in insisting P.W.9 to accompany him to take out the body is only to show as if he knows nothing. This conduct of the Accused is the strong piece of evidence leading to the inference that he had the knowledge of the floating body and that with a view to cause destruction of evidence, he has immersed the body in the Water Pond. This circumstance is a high degree of probability pointing to the guilt of the Accused. 21. To judge the real state of a person’s mind, the subsequent conduct and surrounding circumstances are relevant. State of mind of the Accused can be judged by his conduct in calling others to take out the body as if to show off that it was accidental fall. We are of the view that the subsequent conduct of the Accused is a formidable circumstance showing the guilt of the Accused is to be reckoned with. 22. Homicidal Death:- State of mind of the Accused and his guilty mind established thereon, goes along with the Medical evidence. Initially, the case was registered under Sec.174 Crl.P.C in Crime No.494 of 1999. During Autopsy, P.W.23-Dr.Narasimhamurthy has noted abrasions all over the body:- Right Eye-brow; Right Ear; Lateral side of Neck; Upper 1/3 of left arm; Left Chest; Left Hip; Right Gluteal region; Right scapula; The abrasions and injuries found on the body of the Deceased are clear signs of resistance while she was being sexually molested. Death due to throttling is clearly established by noticing symptoms of throttling on the body of the deceased:- “...larynx, trachea congested vertical tear in carotid, sheath, artery either side seen, hyoid bone – G, cornua found fractured on left side junction of body....” P.W.23 opinion is of definite opinion that the death is due to Asphyxia due to throttling. P.W.23 has further opined that the fracture in the Hyoid bone was due to mechanical violence. Medical evidence that the death was due to throttling is clinchingly establishes that the death is Homicidal. 23. At this juncture, it is appropriate to refer that there were no signs of drowning. P.W.23 has further opined that the fracture in the Hyoid bone was due to mechanical violence. Medical evidence that the death was due to throttling is clinchingly establishes that the death is Homicidal. 23. At this juncture, it is appropriate to refer that there were no signs of drowning. Stomach contained 200 cc semi digested food materials, which is the last meal of the deceased. That apart, Lungs were also found to be congested as seen from Ex.P.14-Post Mortem Certificate. Lungs congested on cross section frothy fluid blood exuate present. Heart distended with dark fluid blood. Congestion of internal organs and absence of water in the Stomach contents clearly shows that the body must have been thrown into the Water Pond after death. The defence version is that the death has been caused due to accidental fall of the Child inside the Water Pond. Had there been accidental fall as suggested by the defence, in the process of struggle for life, there would have been huge intake of water. Congestion of internal organs and absence of water in the Stomach contents improbabilises the defence version. 24. Defence has put forth a suggestion to P.W.23-Medical Witness that the deceased might have fallen into the Water Pond in unconscious stage. For that suggestion, P.W.23 has answered that “...if a person become unconscious and falls on water any by chance of taking water into his lungs is very little....”. On the basis of the above answers of P.W.23, it is contended that had the Child has become unconscious and fallen into the water by chance, signs of drowning would not be found. The defence is not able to substantiate as to how child – Surya become unconscious and fallen into the Water Pond. Further, varying sizes of Abrasions found on the body of Child – Surya coupled with the medical evidence that the death was due to Asphyxia due to throttling improbabilises the defence version that the death was due to accidental fall into the Water Pond. 25. Conduct of the Accused:- After registration of the case, the Accused could not peacefully sleep in his house. Perhaps feeling remorse, the Accused had taken his bed in Kaliamman Temple. P.W.12-Mariappan, resident of the same street went to Kaliamman Temple after dinner in the night at about 08.00 – 08.30 p.m. He saw the Accused lying down in the Temple with Lungi and Shirt. Perhaps feeling remorse, the Accused had taken his bed in Kaliamman Temple. P.W.12-Mariappan, resident of the same street went to Kaliamman Temple after dinner in the night at about 08.00 – 08.30 p.m. He saw the Accused lying down in the Temple with Lungi and Shirt. P.W.12 laid down in the Temple for some time and thereafter, left to his house. Next day morning around 06.00 a.m, when P.W.12 went around the Temple, the Accused was not seen. The conduct of the Accused in avoiding his house and sleeping in the Temple is a strong piece of evidence militating against the Accused. 26. The Accused was arrested on 13.12.1999 – 11.30 a.m. at Sembanarkoil. When being interrogated, the Accused had given confession Statement. On the basis of his Confession Statement, M.O.8-T-Shirt, M.O.9-Jeans Pant and M.O.10 series – Two buttons were seized under Ex.P.13-Seizure Mahazar from the house of the Accused – Front Verandah. His Confession Statement also lead to the recovery of M.O.1-Watch from P.W.8 with whom he had pledged to get money for consuming Liquor. The presence of same mud particles in M.Os.8 and 9 as that of M.O.7-Sample Mud seized near the Water Pond is yet another clinching circumstance against the Accused. 27. The circumstances relied upon by the Prosecution are established by cogent and reliable evidence. In careful analysis of the evidence, we find that the proved circumstances shows the complicity of the Accused. The Medical evidence that the death was due to Asphyxia due to throttling is a clinching piece of evidence against the Accused. We are of the view that the circumstances are of definite tendency unerringly pointing towards the guilt of the Accused. The circumstances are well established. Faced with such chain of circumstances and the evidence, the Conviction and Sentence of the Appellant / Accused are to be confirmed and this Appeal is liable to be dismissed. 28. Therefore, the Judgment (dated 11.12.2001) of the Additional Sessions Judge, Karaikkal in S.C.No.48 of 2000 convicting the Appellant / Accused for the offences under Sections 302, 201 and 354 I.P.C and the sentences of Imprisonment imposed upon him and the quantum of fine are confirmed and this Appeal is dismissed.