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2008 DIGILAW 4438 (MAD)

Siva v. State represented by Inspector of Police

2008-12-01

M.CHOCKALINGAM, S.RAJESWARAN

body2008
Judgment :- M. Chockalingam, J. 1. Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.1, Chengalpattu made in S.C.No.461 of 2004, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. 2. The short facts necessary for the disposal of this appeal can be stated thus: a) P.W.1 is the younger brother of P.W.2. The deceased Sathyakumar, aged 3 years, is the son of P.W.1. P.W.11 is the minor daughter of P.W.2. All of them were living at Shetshop line, Chromepet. During the relevant time, P.W.1 was living with his wife Jyothi. The accused and P.W.1 studied together. Even before the marriage of P.W.1, the accused married one Velankanni. The said Velankanni was running a chit shop, in which P.W.1 was the subscriber. After chit transaction was over, he was demanding money, but she did not pay it back. On the contrary, she took him to many theatres. One day, she took him to the house of P.W.4. P.W.1 originally had illicit intimacy with P.W.4. Thereafter, P.W.1 arranged the marriage of P.W.4 with one Chandiran. b) Before the occurrence, when P.W.1 and Velankanni went to the house of P.W.4, Velankanni informed him that she had no male born and her husband was not competent and hence P.W.1 should give her a male child. Accordingly, P.W.1 and Velankanni shared the bed, which came to the knowledge of P.W.4 later. When P.W.4 met the accused, she informed about the same. The accused and his wife Velankanni had quarrel over the same. At that time, P.W.1 went to the house of the accused in respect of his business. On seeing him, the accused shouted and drove him out. c) P.W.3 is the resident of Shetshop line and he was attached to Christian faith and church. On evening hours of every Friday, he used to do prayer and for that prayer, people used to attend. On 210. 1999 at about 7.00 p.m., when Velankanni and the accused went there, they found P.W.1 along with his son Sathyakumar. The wife of the accused was calling the child and the accused got angry over the same and he took her home. Following the same, on the date of occurrence that was on 310. On 210. 1999 at about 7.00 p.m., when Velankanni and the accused went there, they found P.W.1 along with his son Sathyakumar. The wife of the accused was calling the child and the accused got angry over the same and he took her home. Following the same, on the date of occurrence that was on 310. 1999 at about 10.00 a.m., when Sathyakumar and P.W.11 were playing in the street, the accused came over there and gave Re.1/-to P.W.11 telling that she would get chocolate and asked her to go. Thereafter, he took the child Sathyakumar on his shoulder and went away. Thereafter, the child was not seen. d) All were searching for the child. P.W.2 on 11. 1999 at about 6.30 a.m. went to attend the natures call in the open ground at Rangasamy Street. At that time, he witnessed that the dead body of the child Sathyakumar was floating in the Well. Immediately, he informed P.W.1, who had also verified the same. He proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.7, the Sub Inspector of Police. On the strength of Ex.P.1, a case came to be registered in Crime No.649 of 1999 under Section 174 Cr.P.C. Ex.P.5, the F.I.R. was despatched to the Court. e) P.W.12, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.13, the rough sketch. He also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Then, the dead body of the child was sent to the hospital for the purpose of autopsy. f) P.W.10, the Doctor attached to the Government Hospital, Tambaram at Chromepet, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.12, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of Asphyxia due to drowning. g) P.W.12, after receiving the opinion from the post-mortem Doctor, altered the case into Section 302 IPC. Ex.P.15, the alteration report was sent to the Court. On 11. g) P.W.12, after receiving the opinion from the post-mortem Doctor, altered the case into Section 302 IPC. Ex.P.15, the alteration report was sent to the Court. On 11. 1999, he arrested the accused, who has come forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Pursuant to the same, the accused produced M.O.2, towel, which was recovered under Ex.P.4, the mahazar. The accused was sent for judicial remand. The statements of the witnesses were recorded. On completion of the investigation, he filed the final report. 3. The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 15 exhibits and 3 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the appellant. 4. Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a) According to the prosecution, the occurrence has taken place on 310. 1999 when the child Sathyakumar and also P.W.11, the other child, were playing in the street and due to previous enmity, the accused took the child Sathyakumar and smothered with Towel and thereafter, threw the child into the Well, thereby caused his death. The prosecution had no direct evidence to offer, but it has rested its case on circumstantial evidence. The circumstances are that the first one is motive, the second one is the evidence of P.W.11, the minor child and the third one is the recovery of M.O.2, towel, with which, according to the prosecution, the accused caused smothering of the child. The learned counsel would submit that all the circumstances though placed before the court, were not at all proved. The learned counsel would submit that all the circumstances though placed before the court, were not at all proved. b) So far as the motive part was concerned, the specific case of the prosecution was that P.W.1 developed illicit intimacy with the wife of the accused and the same was brought to the notice of the accused by P.W.4, which impelled him to cause the death of the male child of P.W.1. If really the accused had inimical terms with P.W.1, he would have taken revenge only against P.W.1 and not on his child and further, no reason was also brought to the notice of the court for the act of the accused. c) Further, the whole case is rested mainly on the evidence of P.W.11. P.W.11 was only 4 years at the time of occurrence. According to P.W.11, she was playing with the deceased and at that time, the accused came and gave Re.1/-and asked her to get chocolate and thereafter, he took the child Sathyakumar. Her evidence should have been rejected by the trial court for the reasons that firstly, the child was only 4 years old and she was not at all matured to speak about the happenings. Secondly, regarding the fact that the accused gave her Re.1/-, she did not tell it immediately, but after a week. Apart from that, it is admitted by the Investigating Officer that the statement of the said witness, though claimed to be examined by him on 11. 1999 and 11. 1999, was not at all recorded. Thus, it would be quite clear that she was produced before the court as a witness even without any statement recorded by the Investigator at the time of investigation. All these reasons would be sufficient to reject her testimony. d) Further, the specific case of the prosecution was that the accused smothered the deceased with M.O.2, towel and thereafter, threw the body of the child into the Well. The post-mortem certificate canvassed by the prosecution would indicate that the child died of Asphyxia due to drowning. Further, it was also added by the Post-mortem Doctor that the death could be caused by smothering and that there was possibility that it could be caused by M.O.2, towel. The post-mortem certificate canvassed by the prosecution would indicate that the child died of Asphyxia due to drowning. Further, it was also added by the Post-mortem Doctor that the death could be caused by smothering and that there was possibility that it could be caused by M.O.2, towel. But, the prosecution did not have specific case that either the child was killed and thereafter, threw into the Well or after smothering, when the child was alive, it was thrown into the Well and the child died due to drowning. Thus the cause of death was not certain. Hence the prosecution has miserably failed to prove the circumstances placed by it. Therefore, the appellant is entitled for acquittal. 5. The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6. It is not in controversy that one Sathyakumar, aged 3 years, the son of P.W.1 was done to death not only by smothering, but also threw the child into the Well and therefore, due to drowning also, the child died. The medical opinion canvassed by the prosecution through the post-mortem Doctor would indicate the same. When the evidence for the same was placed before the trial court, that factum was not disputed by the appellant. Hence it has got to be recorded so. 7. In order to substantiate the charge levelled against the appellant that it was he who took the child and after smothering, he threw the child into the Well and caused his death, the prosecution rested its case mainly on the evidence of P.W.11. It is a settled proposition of law that the evidence of the child could be accepted by the court. But before accepting the same, the court must exercise all care and caution, since it is the evidence of the child. Apart from that, the court must also look into for corroborative piece of evidence. In the instant case, P.W.11 is the child aged only 4 years at the time of occurrence. It is pertinent to point out that though the Investigator would claim that the said child was examined by him on 11. 1999 and 11. 1999, no statement was recorded. She was produced before the court as a witness. It is true, the court has tested her maturity and she was examined in chief and also cross. It is pertinent to point out that though the Investigator would claim that the said child was examined by him on 11. 1999 and 11. 1999, no statement was recorded. She was produced before the court as a witness. It is true, the court has tested her maturity and she was examined in chief and also cross. But, at the same time, there is no guarantee that the child has given evidence before the court as stated by her before the Investigator. Apart from that, she was only 4 years old at the time of occurrence. Further, the evidence of the child was not at all corroborated by any other piece of evidence. According to the prosecution, just before the occurrence, both the children were playing and the accused came there, gave Re.1/-to P.W.11 and asked her to get chocolate and thereafter, he took the other child to do the crime. 8. At this juncture, it is pertinent to point out that the only evidence available to speak about the fact of the accused giving Re.1/-to P.W.11 is P.W.2. Even P.W.2 has also deposed that this fact was brought to the notice after a week. Thus, the court is of the considered opinion that it would be highly unsafe to rely on the evidence of P.W.11 aged 4 years. Apart from that, the only recovery of M.O.2, towel, by itself, would not be sufficient to sustain conviction. Under these circumstances, it cannot be said that the prosecution has either placed or proved the circumstances, pointing to the guilt of the appellant. Hence the appellant is entitled for acquittal. 9. Accordingly, this criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellant by the trial court. The appellant is acquitted of the charge levelled against him. The bail bond executed by him shall stand terminated and the fine amount if any paid by him shall be refunded to him.