Chennamurthy v. State rep. By Inspector of Police Chetput Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.14 of 2008Chennamurthy.. AppellantvsState rep. ByInspector of PoliceChetput Police Station.. Respondent Criminal appeal preferred under Sec.374(2) of the Code of CriminalProcedure against the judgment of the District and Sessions Judge,Tiruvannamalai, in S.C.No.124 of 2006 dated 30.11.2007.For Appellant: Mr.V.Gopinath Senior Counsel for Mr.L.MahendranFor Respondent: Mr.P.Kumaresan Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Sessions Division,Tiruvannamalai, made in S.C.No.124 of 2006 whereby the appellant/A-1stood charged under Sections 377, 302 and 201 of IPC along with anothershown as A-2, and on trial, A-1 was found guilty under Sections 302 and201 of IPC and awarded life imprisonment along with a fine of Rs.15000/-and default sentence and one year Rigorous Imprisonment along with afine of Rs.5000/- and default sentence respectively and acquitted of thecharge under Sec.377 of IPC. A-2 was acquitted of the charge levelledagainst him.2.The short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the Correspondent of St. Josepth Higher SecondarySchool in which P.W.2 was the Chief Warden of the Hostel, and A-1, A-2,Nimilan, Illango and Babu were Sub Wardens. The deceased Saravanan wasa student studying VI Standard and also staying in the hostel run byMercy Home at the time of occurrence. P.W.3 was studying VII Standard, https://hcservices.ecourts.gov.in/hcservices/ and P.W.4 was studying VIII Standard. They were also residing in thevery same hostel. After taking dinner on 1.12.2005 at about 8.15 P.M.,the deceased went out of the study hall. P.W.3 who went outside toattend nature's call, saw the deceased being taken by A-1 towards themess. After attending the nature's call, P.W.3 returned to the studyhall. The attendance was used to be taken by the Students Leader,P.W.4. On that day, only A-1 took the attendance for VII and VIIIStandard by calling the names of the students; but, for the VI Standard,without calling the names of the students, he recorded as if all werepresent. P.W.4 and one Rajkumar informed A-1 that the deceased was notpresent for which A-1 replied that he was being paid salary and not tothem and asked them to bind their business. At about 9.45 P.M., all thestudents went to bed. At that time, P.W.4, the Student Leader, informedA-1 that the deceased was missing. A-1 scolded him and asked him to goto bed. (b) On 2.12.2005 at about 5.00 A.M., A-1 gave a wake up call to allthe students, and thereafter, he went asleep till 7.00 A.M. He waswoken up by the students, and they told him that the deceased was founddead. Immediately A-1 told them that if police enquire them, theyshould tell that the deceased was also sleeping along with them duringthat night. Then, A-1 took the attendance for VI to VIII Standards.One Benjamin who was there, questioned A-1 why he was putting presentfor the deceased who is dead. Immediately, A-1 turned that page, tookanother sheet, wrote the names of all the students and put a dot againstthe name of the deceased. At about 6.45 A.M., one Alex and Joseph theCooks in the hostel, informed P.W.1 that a dead body of a boy was lyingnear the water tank. P.W.1 immediately rushed to the place, found thedeceased lying in a pool of blood, and he was with bleeding injuries. Astone was also found near the dead body. He called for A-1 and enquiredhim. A-1 replied that on 1.12.2005 at about 9.00 P.M., after makingstudents to go to bed, he also slept in the room, and he did not knowwhat had happened. On 2.12.2005, P.W.1 went to the respondent policestation at about 11.00 A.M. and lodged a report, Ex.P1. P.W.13, the SubInspector of Police, on the strength of Ex.P1, the report, registered acase in Crime No.802 of 2005 under Sec.302 of IPC. The printed FIR,Ex.P19, was despatched to the Court. (c) P.W.15, the Inspector of Police of the Circle, on receipt ofthe copy of the FIR, took up investigation at about 12.15 P.M.,proceeded to the scene of occurrence, made an inspection, prepared anobservation mahazar, Ex.P13, and also drew a rough sketch, Ex.P22 in thepresence of witnesses. Then he caused the photographs to be taken ofthe dead body and also the scene of occurrence through P.W.9, thePhotographer. At about 1.00 P.M., he recovered M.O.5, bloodstainedearth, M.O.6, sample earth, M.O.1, stone, and M.O.7, pen, under a coverof mahazar, in the presence of witnesses. Thereafter, he conductedinquest on the dead body of Saravanan in the presence of witnesses andpanchayatdars. Ex.P23 is the inquest report prepared by him. The deadbody was sent to the Government Hospital along with a requisition forpostmortem. Then, he examined the witnesses and recorded theirstatements.(d) P.W.10, the Doctor, attached to the Government Hospital, Polur,on receipt of the requisition, conducted autopsy on the dead body ofSaravanan and has given his opinion in Ex.P17, the postmortemcertificate, that the deceased would appear to have died of asphyxia due https://hcservices.ecourts.gov.in/hcservices/ to throttling 37 to 39 hours prior to autopsy.(e) After the completion of the autopsy, P.W.12 produced the shirtworn by the deceased, marked as M.O.1, and trouser, M.O.11, and amulet,M.O.12, under a report Ex.P18. (f) On 4.12.2005 at about 4.00 P.M., when P.W.2, the Chief Warden,was in his house with the Assistant Sadanandam, A-1 and A-2 appearedbefore him, and A-1 gave an extra-judicial confession. P.W.2 reducedthe same into writing, and the said confession of A-1 is Ex.P3. He gotthe signature of both the accused. He prepared his covering letter,Ex.P4, and produced Exs.P3 and P4 and both the accused before theInvestigating Officer. Then the case was altered from Sec.302 of IPC toSections 302, 377 and 201 of IPC. The Investigator prepared an expressreport, Ex.P24, and sent to the Court. (g) P.W.15 examined A-1 at about 7.30 P.M. and recorded hisconfession. Based on the confessional statement, he produced M.O.2shirt, M.O.3, lungi, and M.O.4, jatti of A-1, which were recovered undera mahazar, Ex.P5. At about 8.30 P.M., he recorded the confessionalstatement of A-2. Then P.W.15 took both the accused to the scene ofoccurrence, prepared an observation mahazar, Ex.P6, and drew a roughsketch, Ex.P25. Thereafter, he examined P.W.2 and recorded thestatement. On 5.12.2005, P.W.15 examined P.Ws.4 and 5 and recordedtheir statements. On the very day, he forwarded A-1 to the hospital toascertain the potency of A-1. P.W.14, the Doctor, attached to theGovernment Hospital examined A-1 and A-2 on 16.12.2005 and issuedpotency certificates, Exs.P20 and P21 respectively. (h) On 6.12.2005, P.W.15 examined P.Ws.1, 7 and 8 and recordedtheir statements. On the very day, he seized the attendance register ofthe school, Ex.P7. Thereafter, on 7.12.2005, he gave a requisition forrecording the statements of P.Ws.4 and 5 under Sec.164 of Cr.P.C.P.W.6, the Judicial Magistrate, Vandavasi, on receipt of the requisitionand the order of the Chief Judicial Magistrate, recorded the statementsof P.Ws.4 and 5 on 9.12.2005, which proceedings were marked as Exs.P9and P10 respectively. The material objects were sent for chemicalanalysis, and Ex.P26 is the report of the chemical analyst andserologist. On completion of the investigation, the InvestigatingOfficer filed the final report. 3.The case was committed to Court of Session, and necessary chargeswere famed. In order to substantiate the charges, the prosecutionexamined 15 witnesses and also relied on 26 exhibits and 12 materialobjects. On completion of the evidence on the side of the prosecution,the accused were questioned under Sec.313 of Cr.P.C. as to theincriminating circumstances found in the evidence of the prosecutionwitnesses which they flatly denied as false. No defence witness wasexamined. The trial Court heard the arguments advanced, scrutinized thematerials available and took the view that the prosecution has provedthe case beyond reasonable doubt in respect of A-1 and hence found himguilty and awarded the punishment as referred to above while itacquitted A-2 of the charge framed against him. Hence this appeal atthe instance of A-1. 4.The learned Senior Counsel Mr.V.Gopinath appearing for theappellant would submit that the prosecution has miserably failed toprove the guilt of the accused; that the trial Court has acquitted A-2; https://hcservices.ecourts.gov.in/hcservices/ that the very reasons for the acquittal of A-2 should have been appliedto A-1 also; that the prosecution had no direct evidence to offer, butrelied upon only circumstantial evidence; that necessary circumstanceswere neither placed nor proved pointing to the guilt of the accused;that the main circumstance relied on by the prosecution was that on thedate of occurrence that was on 1.12.2005, at about 8.15 P.M., P.W.3 astudent of VII Standard, witnessed the deceased following A-1 towardsthe mess, and thereafter, when the attendance was taken, the studentsleader, P.W.4, informed A-1 that the deceased was absent for which A-1replied that the salary was only paid to him and not to P.W.4, and whenP.W.4 again informed A-1 that the deceased was missing when they went tobed, A-1 scolded him and asked him to mind his business; that the othercircumstances relied on by the prosecution were the extra-judicialconfession alleged to have been given by A-1 and A-2 to P.W.2 the ChiefWarden, on 4.12.2005 at about 4.00 P.M. and that the same was reducedinto writing by P.W.2 marked as Ex.P3, and his covering letter wasmarked as Ex.P4, and he produced both the accused before theInvestigating Officer P.W.15, and the respective confessional statementswere recorded by him, and pursuant to the same, A-1 produced M.Os.2 to4.5.Added further the learned Senior Counsel that the above twocircumstances though relied on by the prosecution, should have beenrejected by the trial Court, but were erroneously accepted; that as faras the first circumstance was concerned, P.W.3 was the student of VIIStandard; that according to him, on the date of occurrence at about 8.15P.M. he went outside for attending nature's call, and at that time, hefound A-1 proceeding towards the mess room, and the deceased followedhim; that nowhere P.W.3 has stated that A-1 took the deceased to themess room; that though P.W.3 has deposed before the Court that he saw A-1 followed by the deceased towards the mess room at or about the time ofoccurrence, and P.W.4 has complained to A-1 as to the absence of thedeceased at the time of taking the attendance and also in the bed room,the statements of these two witnesses were recorded only on 5.12.2005;that both P.Ws.3 and 4 have categorically admitted that they werepresent in the School on that day and that on 2.12.2005, the policeofficials came over and enquired all the students including them; thathad it been true that P.W.3 had witnessed the deceased following A-1just before the occurrence and P.W.4 has complained as to the absence ofthe deceased to A-1 at the time of taking attendance and also when theywent for bed, they would have certainly informed the Investigator at thetime when they were first enquired on 2.12.2005 itself, but, they havenot whispered anything; that their silence would be indicative of thefact that they did not know anything, and they have been added aswitnesses to suit the prosecution case, and that too after recording thealleged extra-judicial confessional statement; that much reliance wasplaced by the prosecution on the extra-judicial confession alleged tohave been made by A-1 and A-2 to P.W.2 on 4.12.2005; that it is truethat P.W.2 was the chief warden under whom A-1 and A-2 and other threeothers were working as Sub Wardens; that P.W.1 and other witnesses havecategorically admitted that the Investigator along with the police partyvisited the spot on 2.12.2005 itself and enquired all the inmates andalso all the five wardens; that the witness has specifically spoken tothe fact that all five wardens were taken to the police station, and A-1 https://hcservices.ecourts.gov.in/hcservices/ and A-2 were retained in the police station while others were allowed togo out, and thus it would be quite clear from the evidence that A-1 andA-2 were actually in the police custody from 2.12.2005 onwards; that theclaim made by P.W.2 that A-1 and A-2 came to his house on 4.12.2005 at4.00 P.M. and made extra-judicial confession as found in Ex.P3, cannotbut be false; that further according to P.W.2, on 2.12.2005 and3.12.2005, he was away, and he returned only on 4.12.2005; but, thispart of his evidence was falsified from the evidence of the otherwitness stating that he was very well available in the school duringthose days; that according to P.W.15, the Investigator, when he reachedthe School on 2.12.2005, he could not see A-1 and A-2 and they wereabsconding and they were actually produced by P.W.2 only on 4.12.2005along with Ex.P3 confessional statement and Ex.P4 covering letter ofP.W.2; but, it is thoroughly falsified by the evidence of the otherwitnesses stating that all the wardens were very well available on2.12.2005, and they were taken to the police station, and A-1 and A-2were retained by and in the custody of the police all along the period;and that all would go to show that the extra-judicial confession wasnothing but cooked up to suit the prosecution case. 6.The learned Senior Counsel would further add that the statementsof P.Ws.3 and 4 were recorded by the police only on 5.12.2005 not onlyto suit the prosecution case, but also to strengthen by way ofcorroboration to the extra-judicial confession alleged to have beenrecorded by P.W.2 on 4.12.2005, and thus, the prosecution has miserablyfailed to prove its case and they are entitled for acquittal.7.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made.8.It is not in controversy that one Saravanan, a boy, who wasstudying VI Standard in St. Josepth Higher Secondary School and alsostaying in the hostel run by Mercy Home, was found dead in the morninghours of 2.12.2005. On the complaint given by P.W.1 under Ex.P1, a casecame to be registered by the respondent police in Crime No.802 of 2005originally under Sec.302, and subsequently altered to Sections 302, 377and 201 of IPC. Following the inquest made by the Investigator andpreparation of the inquest report, the dead body was subjected topostmortem by P.W.10 the Doctor, who has given evidence as a witnessbefore the Court and also through the contents of the postmortemcertificate marked as Ex.P17 that Saravanan died due to the suffocationcaused out of strangulation. The cause of death as put forth by theprosecution was never questioned by the appellant/A-1 before the trialCourt, and hence it has got to be factually recorded that Saravanan diedon account of homicidal violence. 9.In order to substantiate the charges levelled against theappellant, the prosecution had no direct evidence to offer, and itrelied upon mainly two circumstances. It is not that this Court isunmindful of the caution made by the Apex Court and also the settledprinciples of law that in a given case like this, where the prosecutionexclusively rests its case upon the circumstantial evidence, it mustplace and prove necessary circumstances making a chain without a snap https://hcservices.ecourts.gov.in/hcservices/ and also pointing to the hypothesis that except the accused no one couldhave committed the offence. In the case on hand, on scrutiny of theavailable materials, the following circumstances are noticed by theCourt. 10.The deceased was a boy studying VI Standard in St. JosepthHigher Secondary School and also staying in the hostel attached to MercyHome. P.W.3 was a student of VII Standard and P.W.4 was a student ofVIII Standard. According to P.W.3, on the date of occurrence namely1.12.2005 at about 8.15 P.M., he went out of the study hall to attendthe nature's call, and at that time, he has seen A-1 proceeding towardsthe mess and he was followed by the deceased. It is pertinent to pointout that he also returned after sometime when the attendance was taken.The dead body was found nearby the water tank which is situated abuttingthe mess. From the evidence of P.Ws.3 and 4, it would be quite clearthat the attendance used to be taken by the Student Leader namely P.W.4;but, on that day it was taken by A-1. Apart from that, A-1 did not takeattendance for the students of VI Standard but called the names of thestudents of VII and VIII Standard only. He recorded that all thestudents of VI Standard were present. According to P.W.4, he brought tothe notice of A-1 as to the absence of the deceased. Immediately hereplied that the salary was paid only to him and not to P.W.4. Sometimelater, when all of them went to bed, the deceased was not found in thebed room. This was also brought to the notice of A-1; but, A-1 did notpay heed to it, and on the contrary, he abused P.W.4. At this juncture,it is pertinent to point out that P.W.4 was not only a student andfriend of the deceased, but also the Student Leader, and he was to bringthe same to the notice of the Warden immediately which he has done. Asfar as A-1 was concerned, he was not only a Sub Warden, but also aTeacher for those students. 11.It is further pertinent to point out that according to P.Ws.3and 4, the next morning, A-1 the Sub Warden after giving the wake upcall, was sleeping in the last bench upto 7.00 A.M. and it was thestudents who woke him up and informed him as to the death of thedeceased. Immediately, he told P.Ws.3 and 4 that if police enquire, theyshould inform to the police that the deceased was also sleeping alongwith them during the previous night; otherwise, he would see thedismissal of the students from the school. Thus, P.Ws.3 and 4 were keptunder the grip of fear during those days. It is true that the policecame over to the hostel on 2.12.2005. Even assuming all the studentswere enquired by the police officers, P.Ws.3 and 4 did not come forwardto tell due to their age and also they were under the grip of fear. Itshould not be forgotten that they were actually doing their studies andtaking food freely from the hostel attached to Mercy Home. If anyaction is taken as mentioned by the Sub Warden cum Teacher, A-1,immediately, they will not only lose their studies, but also lose theirshelter. Under such circumstances, they have not come forward to speakabout the same. It is true that their statements were recorded on5.12.2005. They have given statements under Sec.161 of Cr.P.C. whichwere deposed by them before the Court. Now, the contentions put forthby the learned Senior Counsel for the appellant that these are allnothing but further improvements made in the case in order to suit theprosecution case cannot be accepted. It is true that there was a delay; https://hcservices.ecourts.gov.in/hcservices/ but, the delay, in the considered opinion of the Court, cannot be areason in view of the age of the children and the situation andcircumstances in which they were placed. A careful scrutiny of theevidence of P.Ws.3 and 4 would clearly indicate that it was natural andinspired the confidence of the Court, and hence they were acceptable. 12.From the evidence of P.W.3, it would be quite clear that he haslast seen the deceased in the company of A-1 at or about the time andnearby the place of occurrence. From the evidence of P.W.4, it would beabundantly clear that immediately after the occurrence, the deceased whowent to the mess area did not come back either to the study hall whenattendance was taken, or to the bed room where they were sleeping thatnight. The conduct of A-1 in abusing P.W.4, the Student Leader, when hecomplained as to the absence of the deceased and also the subsequentthreat made by A-1 the next morning to the students that if policeenquire them, they should tell that the deceased was also sleeping withthem on the previous night and if not, they would see the dismissal fromthe school all would go to show that none else except the accused hascommitted the offence. 13.As rightly pointed out by the learned Senior Counsel for theappellant, from the evidence of the witnesses it would be quite clearthat the police have made enquiry, and all the wardens and A-1 and A-2have been actually taken to the police station, and they were kept incustody. If to be so, the claim by the prosecution that A-1 and A-2appeared before P.W.2 and gave a confessional statement on 4.12.2005 andit was recorded by him cannot be believed. Hence the alleged extra-judicial confession, Ex.P3, and the covering letter, Ex.P4, have got tobe rejected. Equally, the confessional statement alleged to have beengiven by A-1 subsequently to the Investigator and the recovery ofmaterial objects have got to be rejected. Accordingly, they arerejected. Even after rejecting that part of the evidence, this Court isof the considered opinion that the evidence of P.Ws.3 and 4 coupled withthe prior and subsequent conduct of A-1 would clearly indicate that itwas he who committed the heinous crime of killing the boy, and he hasmade an attempt to screen the same. There is nothing to interfere inthe judgment of the trial Court.14.In the result, this criminal appeal fails, and the same isdismissed confirming the judgment of the lower Court.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/ https://hcservices.ecourts.gov.in/hcservices/ To:1.The District and Sessions Judge Tiruvannamalai2.-do- thro' Principal Sessions Judge, Thiruvannamalai.3.The Inspector of Police Chetput Police Station4.The Superintendent,Central Prison,Vellore.5.The District Collector,Thiruvannamalai.6.The Director General of Police,Chennai.7.The Public Prosecutor High Court, Madras.+1cc to Mr.L.Mahendran, Advocate Sr 3474KM (CO)km/2.2.C.A.No.14 of 2008