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2009 DIGILAW 1458 (MAD)

Poongavanam v. State By Inspector of Police

2009-04-28

R.BANUMATHI, RAJA ELANGO

body2009
Judgment RAJA ELANGO, J. 1. This appeal arises out of the judgment made in S.C.No.356 of 2006 by the learned Principal District and Sessions Judge, Chengalpattu, convicting the appellant/accused for an offence under Section 302 IPC., and sentencing him to undergo life imprisonment and also to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for six months. 2. Brief facts of the prosecution case are as follows: (i) P.W.1 living alone in Gandhi Nagar, Govilambakkam, near Tambaram, since she was deserted by her husband P.W.2 Nagaraj. The accused Poongavanam is also residing in the same village. Taking advantage of the loneliness of P.W.1, the accused persuaded her coerced and compelled her to have intercourse with him. Initially, P.W.1 refused and resisted the request of the accused and on the particular day, the accused trespassed to the house of P.W.1, where he kept Rs.2000/-under the pillow and by threatening P.W.1 had intercourse. Thereafter with the consent of P.W.1, the accused continued the illicit intimacy with P.W.1 and through the illicit intimacy, P.W.1 gave birth to a male child. On intimation of the same, the accused visited the house of P.W.1 and slept in the house of P.W.1, when P.W.1 went out of the house for cleaning the vessels, she saw the accused killing the child by pressing the child neck with his legs. The child succumbed to death due to the injury caused by the accused. ii) PW1 set the law in motion. On the basis of complaint lodged by PW1, case was registered in Cr.No.1495 of 2005 (Ex.P17) under Sections 302 and 201 of IPC. (iii). PW9-Inspector of Police had taken up investigation, he inspected scene of occurrence and prepared Ex.P2-Observation Mahazar and Ex.P18-Rough Sketch. Chudidhar M.O.1 was seized under Ex.P19-Seizure Mahazar. In the occurrence place inquest was held on the body of the child and Ex.P20 is the inquest report. On requisition from Investigating Officer PW6-Dr.K.Madhikran had conducted autopsy on the body of child and noted the injuries in the body. PW6 opined that the child would appear to have died of injury to the neck. Then P.W.9 examined the witnesses and recorded their statements. (iv). On 10. 2005, accused was arrested by PW9-Investigating Officer. Blood sample of P.W.1-Shanthi and accused-Poongavanam and also Femur Bone with soft tissue of child were collected and sent for DNA test. PW6 opined that the child would appear to have died of injury to the neck. Then P.W.9 examined the witnesses and recorded their statements. (iv). On 10. 2005, accused was arrested by PW9-Investigating Officer. Blood sample of P.W.1-Shanthi and accused-Poongavanam and also Femur Bone with soft tissue of child were collected and sent for DNA test. After conducting DNA test, PW8-Vanaja (Chemical Examiner) opined that appellant/accused is the biological father of the deceased child. P.W.9 received the DNA report Ex.P16 and send the same to the learned Judicial Magistrate, Alandur. On 011. 2005, P.W.9 Investigating office went to the Government Hospital, Rayapettah and examined the Doctor P.W.6 who conducted the post mortem and received the post mortem report (Ex.P20). Upon receipt of Chemical Analysis report and on completion of investigation final report was filed against the accused for the offences under Sections 302 and 201 IPC. 3. To substantiate charges against the accused, in the trial Court, the prosecution examined P.Ws.1 to 9, Exs.P.1 to P.20 and M.Os.3 were marked. 4. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating materials appearing against him, he denied the same as false and pleaded not guilty. Upon analysis of evidence, the trial Judge convicted the appellant/accused for the offence under Section 302 I.P.C. and sentenced him to life imprisonment and imposed fine as aforesaid in para No.(1). 5. P.W.1 deposed that regarding the persuasion and compulsion of accused and the fact that he paid Rs.2,000/- and forcibly had intercourse with her and subsequently after gave birth of the child, the accused visited the house and killed the child by pressing the neck of the child. P.W.2 Nagarajan, the husband of P.W.1 deposed before the Court that on his arrival to the house of P.W.1, P.W.1 informed that the child was born to accused Poongavanam, so he need not visit the house hereafter and he was asked to take the children born through him to P.W.1. Accordingly, he left the place along with his children. 6. Further to substantiate that the accused is father of P.W.1s child, the Scientific Analysis P.W.8 Vanaja was examined by the trial Court. P.W.8 deposed that as to conduct of the DNA test, DNA profile of Femur bone was compared with DNA profile of the accused and P.W.1. After DNA test, P.W.8 opined as follows:- "(i) Mr. 6. Further to substantiate that the accused is father of P.W.1s child, the Scientific Analysis P.W.8 Vanaja was examined by the trial Court. P.W.8 deposed that as to conduct of the DNA test, DNA profile of Femur bone was compared with DNA profile of the accused and P.W.1. After DNA test, P.W.8 opined as follows:- "(i) Mr. N. Poongavanam is the biological father of the child to whom the femur bone etc. (of ref.2) belongs. (ii) Ms. Shanthi is the biological mother of the child to whom the femur bone etc. (of ref.2) belongs. The proof of paternity of the child of P.W.1 through accused is to the extent of 99.99% After completion of the trial, based on the evidences of the above said three witnesses, the learned trial Judge convicted the accused as above stated para No.(1). 7. The learned counsel appearing for the appellant/accused submitted that there is an inordinate delay in lodging the complaint and interalia made the following submissions:- (ii) No independent witness examined to substantiate the case of the prosecution; (iii) The evidence of P.W.1 is highly unbelievable and not trustworthy; (iv) P.W.2 Nagaraj, the husband of P.W.1s evidence is not cogent and lend any support to the case of the prosecution; 8. On perusal of the entire evidence and the records, P.W.1s evidence that she had illicit intimacy with accused and by way of that illicit intimacy gave birth to a male child on 210. 2005. Further P.W.1 deposed that after commission of the crime by the accused, the body of the male child was kept in the corner of the house and folded in a cloth. Since because, there was a bad smell spreading along which was questioned by the neighbors, she lodged a complaint before the police on 210. 2005. In the Complaint P.W.1 has stated that the accused covered the body with churidhar and left it in the North East Corner of the hut, whereas in the cross examination, she has stated that the body was buried near the firewood Oven (Aduppu) from where the I.O. Exhumed the body after four days. Delay in setting the law in motion is to be normally viewed by the Courts for suspicion. In cases of delay, there are possibilities of improvements and coloured versions being introduced. Therefore, it becomes necessary for the prosecution to explain the delay. Delay in setting the law in motion is to be normally viewed by the Courts for suspicion. In cases of delay, there are possibilities of improvements and coloured versions being introduced. Therefore, it becomes necessary for the prosecution to explain the delay. In the instant case, though P.W.1 is alleged to have seen the accused killing the child, P.W.1 has not immediately chosen to lodge a complaint. The delay in lodging the complaint is not properly examined by P.W.1. Therefore, evidence of P.W.1 is to be viewed with care and caution. P.W.1s evidence is to be tested for its consistency and credibility. The delay in lodging the complaint is not properly explained by P.W.1. 9. Further, the evidence of P.W.1 that she was all along with the dead body for two days in the same house is highly improbable and unbelievable. Further P.W.1 stated that in the Chief examination that she gave birth to the child in her house that the same was not known to the neighbours of the area. The delivery of the child also appears to be without the help of any elders or neighbours, which creates doubt about the narration of the fact of the case. 10. P.W.1 has stated that immediately after she gave birth to the child started her day to day work and at that time she saw accused killing the child by pressing its neck is also unbelievable. Further, the evidence of P.W.1 that she lodged the complaint after consultation with the local politicians and neighbors would also indicate the possibility of deliberation implicating the accused in this case. Therefore, we are of the opinion that the delay in the present case is fatal to the prosecution, because there is every possibility of implication of the accused and improvements in the complaint. 11. Further, the evidence of P.W.2 that he visited the house of P.W.1 at 3.00 p.m., would nullify the presence of the accused in the house of P.W.1. The prosecution has also not taken any efforts to prove the presence of accused in P.W.1s house at the particular point of time. Perusal of records reveals that the investigating officer examined some of the witnesses to prove the presence of accused in P.W.1s house on that day and recorded their statements. But they were not examined in the Court to prove the same. Perusal of records reveals that the investigating officer examined some of the witnesses to prove the presence of accused in P.W.1s house on that day and recorded their statements. But they were not examined in the Court to prove the same. There is no explanation for non examination of those witnesses in the Court. In the absence of any independent evidence to prove the presence of accused at the relevant point of time, it would be unsafe to rely upon the uncorroborated testimony of P.W.1. 12. The evidence of P.W.8- Vanaja and DNA typing results would prove the paternity of the child. But that by itself cannot be a ground to convict a person when the charges levelled against him one under Section 302 IPC. Mere fact that the accused had illicit intimacy and through him P.W.1 gave birth to a male child is not a ground to infer complicity of the accused in the occurrence. Hence, we are of the opinion that uncorroborated evidence of P.W.1 evidence is nor sufficient to connect the accused with the crime alleged. The conviction cannot be based even on a strong suspicion and it should be only on the strict proof of the same by the prosecution. For the foregoing discussions, we are of the considered view that evidence adduced by prosecution is nor sufficient to connect the accused with the crime. Reasonable doubts arise as to prosecution case and therefore conviction of the appellant/accused cannot be sustained. 13. In the result, the appeal is allowed and the judgment under challenge is set aside. The appellant/accused is found not guilty of the offences for which he was charged, tried and convicted and accordingly, he is acquitted. Fine amount paid by him is ordered to be refunded to him.