Kamsala v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.02.2008CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No. 656 of 2007KamsalaW/o.Kaliyaperumal @ Rakkiri...Appellant/Accused-Vs-State rep. byThe Inspector of Police,Kadampuliyur Police StationCuddalore District.(Crime No.455 of 2004)...Respondent/ComplainantMemorandum of Grounds of Criminal Appeal under Sec. 374(2) ofthe Criminal Procedure Code against the Judgment dated 23.02.2005 madein S.C.376 of 2004 on the file of the learned Principal Sessions Judge,Senior Division, Cuddalore.For appellant :: Mr.M.G. Shankaran for Mrs.S.Shanthakumari For Respondent:: Mr.P.Kumaresan Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by D. MURUGESAN, J.)The appellant-Kamsala (A1) was put on trial along with oneDeivasigamani (A2) in S.C.No.376 of 2004 on the file of the PrincipalSessions Judge, Cuddalore and was found guilty, convicted and sentencedto undergo three years rigorous imprisonment and also to pay a fine ofRs.500/-, in default to undergo rigorous imprisonment for three monthsfor the offence under Section 364 IPC and to undergo imprisonment forlife and also to pay a fine of Rs.1000/-, in default to undergo rigorousimprisonment for one year for the offence under Section 302 r/w 34 IPCand to undergo rigorous imprisonment for four years and also to pay afine of Rs.500/-, in default to undergo rigorous imprisonment for threemonths for the offence under Section 201 r/w 302 IPC and the sentencesshall run concurrently. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the prosecution in brief is as follows:-A1 is a Saamiyadi (Saamiyadi Kuri Solbavar) and is the resident ofKaruvepillaipalayam Village. A2-Deivasigmani is the Poojari andDharmakartha of Veera Anjeneyar Temple, Ulundurpet and he is a residentof Ulundurpet colony. The deceased-Ajeeth, aged 3½ years, is the son ofVelmurugan, P.W.1. The appellant (A1) used to visit the house of thesaid Velmurugan and had acquaintance with him. With an intention to givethe deceased-child in (Narabali) human child sacrifice, at about 12.00noon on 12.07.2004, on the advise of the co-accused (A2), the appellantkidnapped the child and handed over him to the said Deivasigamani on thesame day at about 3.00 p.m. At about 5.30 p.m., both of them took thedeceased to Mangaleswari Amman Temple at Mangalampettai Sandaimedu andhad murdered the child by pressing his face with the shirt of the boyclosely and tightly after removing his dress and after putting viboothi,kumkum and turmeric on him and after pronouncing mantras. In order toscreen the evidence and also the evidence of murder, both of them threwthe dead body of the child into a nearby well belonging to oneSukkurbai. 3. At about 10.00 a.m., on 13.07.2004, one Thiru.Rathinavel,Assistant to the Village Administrative Officer of Mangalampettai,informed him that he saw the dead body of a child aged about 5 years inthe well belonging to one Sukkurbai. On receipt of such information, theVillage Administrative Officer, P.W.9 went to the place and also foundthe dead body floating in the water. Immediately, he lodged thecomplaint, Ex.P-6 at 10.30 a.m., to P.W.14, the Sub Inspector ofPolice attached to Mangalampettai Police Station, who registered thesaid complaint in Cr.No.142/2004 for the offence under Section 174Cr.P.C. The printed First Information Report is Ex.P.14. Thereafter,P.W.14 went to the place and prepared an Observation Mahazar Ex.P15 andalso drew a rough sketch, Ex.P.16 in the presence of witnesses. He madearrangements for the photographs to be taken and he conducted inquest onthe dead body of the child in the presence of panchayatars andwitnesses and prepared the inquest report, Ex.P.17. Thereafter, he madearrangements for conducting autopsy and for the said purpose, he sentthe body through the Police Constable to Government Hospital,Vridhachalam along with a requisition, Ex.P-7 to the doctor forconducting post-mortem.4. P.W.11, the doctor attached to Government Hospital,Vridhachalam commenced post -mortem on the body of the deceased at 12.15p.m., on 14.7.2004 and she noted the following:-" Could not be identified due to highly decomposedbody.Body was seen by the undersigned at 12.15 p.m on14.07.2004 . Its condition then was rigor mortisabsent. Post-mortem commenced at 12.15 p.m. On14.07.2004. Appearances found at the post-mortem thebody lies on its back with extension of all limbs.Maggots present all over the body. Both eyesproptosed. Mouth opened. Tongueprotruded outside.The whole bodybloated. Blisters and peeling of theskin present. Hyoid bone taken and sent foranalysis. Throax: All bones intact. Heart chambers https://hcservices.ecourts.gov.in/hcservices/ empty. Lungs pale, on cut section congested. Seenfluid come out and sent for analysis with bore watercontent. Abdomen: All internal organs pale. Stomachempty. Viscera preserved and sent for analysis.Skull – All cranial suture lines separated Brainmatter liquified and pale." She issued the post-mortem certificate, Ex.P-11 with her final opinionon the basis of the chemical analysis reports under Exs.P-8 to P-10 thatthe deceased would appear to have died of asphyxia due to smothering 48to 56 hours prior to post-mortem.5. As P.W.14 could not identify the child, he gave wirelessmessage to all police stations and, as no body came forward to claim thebody, on 14.07.2004, he buried the dead body with the assistance of themenials of Vridhachalam Municipality. Thereafter, he made arrangementsto publish the photographs of the child in the dailies and handed overthe case for further investigation to P.W.15, the Inspector of Policeattached to Mangalampettai Police Station.6. In the mean time, P.W.1 gave the Complaint, Ex.P-1 at about9.00 a.m., on 14.7.2004 to P.W.16, the Sub Inspector of Police attachedto Kadambuliyur Police Station as to the missing of his 3 ½ years oldson. The said complaint was registered in Cr.No.455 of 2004 underSection 363 IPC. The printed First Information Report is Ex.P-19. Heforwarded the express reports to the Court as well as to the higherpolice officials.7. P.W.17, the Circle Inspector of Police in charge of KadambuliyurPolice Station, took up investigation on 14.7.2004 after the receipt ofthe FIR, Ex.P-19. He visited the scene of occurrence and prepared anObservation Mahazar, Ex.P2 and also drew a rough sketch, Ex.P-20 in thepresence of P.W.5 and another witness. He seized the copper mandraplates and the talismans, M.Os.4 to 9 produced by P.W.2 under themahazar, Ex.P3 in the presence of the same witnesses. He examined P.Ws.1to 5 and recorded their statements. On receipt of wireless message fromthe Office of the Superintendent of Police as to the registration of thecase in Cr.No.142 of 2004 of Mangalampettai Police Station, he tookP.W.1 and other witnesses to Mangalampettai Police Station on 15.7.2004at 9.00 a.m., to identify the deceased.8. P.W.1, on seeing the photograph, M.O.1, identified the boy ashis son. Immediately, P.W.15 gave a requisition under Ex.P-13 to theTahsildar of Vridhachalam, P.W.13 to exhume the dead body andaccordingly, the body was exhumed in the presence of P.W.1 and otherwitnesses. Ex.P.12 is the report of the Tahsildar in regard to theexhumation. Thereafter, the body was handed over to P.W.1. Thereafter,P.W.15 gave a requisition for transfer of the case in Cr.No.142 of 2004pending on the file of Mangalampettai Police Station to KadambuliyurPolice Station.9. P.W.17, continuation with his investigation, altered the offenceto one under Section 302 IPC and forwarded the altered report, Ex.P21 tothe Court. On receiving information, he proceeded to Ulundurpet-Vridhachalam road junction on 15.7.2004 and arrested the appellant- https://hcservices.ecourts.gov.in/hcservices/ Kamsala (A1) with the assistance of a woman Sub Inspector of Police andthe co-accused (A2) at 9.00 a.m., in the presence of P.W.7 and anotherwitness. In pursuance of the admissible portion of the confession of A-1 under Ex.P4, he recovered the shirt, M.O.2 and the Jatty, M.O.3 underthe mahazar, Ex.P.5. He thereafter remanded them to judicial custody.He examined the other witnesses and the post-mortem doctor and recordedtheir statements. After completing investigation on 25.8.2004, he laidthe final report against the accused for the offence under Sections 364,302 r/w 201 of IPC.10. The prosecution examined 17 witnesses, marked 22 exhibits andproduced 14 Material objects in order to prove its case.11. When both the accused were questioned under Section 313 of theCriminal Procedure Code, they denied each and every incriminatingmaterials available against them as false. No witness was examined andno document was marked on the side of the defence. The learned trialJudge, accepting the case of the prosecution, convicted the accused forthe offences as stated earlier. It would be relevant to refer at thisstage that A2, who was also convicted along with the appellant,preferred an appeal in C.A. 249 of 2005 questioning the conviction andsentence. By the judgment dated 28.02.2007, this court had allowed thesaid appeal. At that point of time, the appellant had not preferred anyappeal and the present appeal came to be filed only later.12. Mr.M.G.Shankaran, learned counsel appearing for theappellant has submitted that inasmuch as the appeal preferred by the co-accused (A2) was allowed by this Court disbelieving the case of theprosecution , the appellant (A1) is also entitled to the same benefitand consequently the judgment of conviction and sentence should be setaside.13. Even on merits, the learned counsel would submit that thereis no evidence to show that A1 had kidnapped the deceased-child, as theidentity of A1 has not been proved by the prosecution. Further, thelearned counsel would submit that the prosecution has also failed toidentify the child, which was found in the custody of the appellant. Hewould also submit that as the evidence of the prosecution with regard tothe implication of co-accused (A2) by P.Ws.6 and 8 was disbelieved bythis court, when the case of the prosecution rests both on falsehood andtruth mixed and are inseparable, the benefit must be given to theappellant. In support of the above submissions, the learned counselwould extensively take us through the entire evidence, moreparticularly, the evidence of P.Ws.1,2,3,4,6 & 8.14. Mr.P.Kumaresan, learned Additional Public Prosecutor, on theother hand, would submit that the appeal preferred by the co-accused(A2) in the Sessions Case was allowed solely disbelieving the evidenceof P.Ws.6 & 8 alone. Even while allowing the criminal appeal filed bythe co-accused, this court had made it clear that the case of the otheraccused namely, the appellant herein could be considered independentlyon its own merit without reference to any of the observations made inthe order in favour of A2. The learned Additional Public Prosecutorwould also submit that inasmuch as the evidence of P.Ws.2, 3 & 4 as to https://hcservices.ecourts.gov.in/hcservices/ the last seen theory and the evidence of PW5 as to the recovery ofM.Os.2 & 3 under Ex.P5 on the basis of the admissible portion of theconfessional statement of A-1 are available, the prosecution caseinsofar as A1 stands entirely on a different footing and the convictionand sentence merits no interference. In support of the above submission,the learned Additional Public Prosecutor would again take us throughthe evidence of Pws1 to 5 & 7 as well as the relevant exhibits to provethe recovery.15. We have anxiously given our consideration to the rivalcontentions. It is a case of circumstantial evidence. In a case ofcircumstantial evidence, this court must cautiously scrutinize theevidence in respect of each and every material particular. A burden iscast upon the prosecution to prove the circumstances without therebeing any break implicating the appellant. Keeping the above in mind,the case of the prosecution should be considered.16. Before we delve upon the evidence to find out whether theprosecution has established the entire chain of circumstances to provethe guilt of the accused, we are inclined to consider the firstsubmission as to the applicability of the judgment of this court made inC.A.No.249 of 2005 dated 28.02.2007, whereby the co-accused (A2) wasacquitted. The prosecution has laid charge sheet as against both theappellant and the other accused. The trial court also had found boththe accused guilty. In fact, the trial court found the appellant (A1)guilty of the offence under Sections 364 and 302 r/w 34 IPC. Inaddition to the above, the appellant herein was also found guilty alongwith the other accused for the offence under Section 201 r/w 302 IPC.The co-accused (A2) was also found guilty of the offence U/s.302 of IPC.While considering the appeal preferred by A2, this court had taken noteof the evidence of the eye-witness, PW8. PW8 had deposed before thecourt that on the evening of 12.07.2004 he saw both the accused withthe child after the closing hours of shandy. At that time when heenquired A2 as to why he is taking the child, A2 replied that he wastaking the child to give treatment, as the child was unwell.Thereafter, he has described as to how the child was murdered. Theabove evidence was not accepted by this court on the ground that PW8 wasexamined on 19.07.2004 and his statement reached the court only on2.8.2004 and therefore, there would be a possibility of PW8 implicatingA2 for the first time after PW6 came to be examined. PW6 was examined toprove the last seen theory namely, after the occurrence, both theappellant and A2 were seen by PW6. The evidence of PW6 was not acceptedby this court on the ground that the accused are shown to be strangersto PW6 and that the prosecution would have definitely done better byholding Test Identification Parade to enable PW6 to identity the personswhom he had seen in the weekly shandy along with the child. This courthad disbelieved the evidence of P.W.6 and consequently P.W.8 who came tobe examined after P.W.6 was examined and the statement recorded underSection.161 Cr.P.C., from P.W.8 was not sent to the court immediately,this court gave the benefit of doubt to the co-accused .17. We must not over look the observations of the very sameDivision Bench insofar as the complicity and involvement of A1, theappellant herein in the offence. The court had made a cautious note that https://hcservices.ecourts.gov.in/hcservices/ whatever the observations and the findings rendered in the judgmentwould be only in order to consider the appeal preferred by A2 and suchfindings are not with reference to A1's involvement in the prosecutioncase, and the case of A1 could be considered with reference to theevidence available if required. From the above observation, it is veryclear that the earlier Division Bench had not rendered any finding as tothe evidence available to implicate A1. That apart, as A1 was not beforethis court at the relevant point of time when this court was consideringthe appeal preferred by A2 and the conviction and sentence were based onthe evidence of Pws.6 & 8 and not on the basis of any other evidence, inour considered view, the case of the appellant (A1) shall be consideredindependently by taking into the ocular and documentary evidenceimplicating him irrespective of whatever findings given by the earlierDivision Bench in the appeal preferred by the co-accused. Further, it isnot as if the prosecution has come forward with the case to implicate A1solely on the basis of evidence of P.Ws.6 & 8, but has examined P.Ws.2to 4 as to the last seen theory, P.W.5 as to the recovery of M.Os.4 to 9and P.W.7 as to the recovery of M.Os.2 & 3 on the basis of theadmissible portion of the confessional statements. Therefore, in ourconsidered view, the judgment of this court dated 28.02.2007 made inC.A.No.249 of 2005 acquitting the co-accused (A2) shall not stand in ourway to independently appraise the evidence and consequently the case ofthe prosecution to find out the guilt of the present appellant (A1).18. So far as the motive aspect is concerned, the prosecution hasexamined P.Ws.1 to 4 as to the fact that A1 is the soothsayer andfortune-teller. P.W.1, the father of the deceased, has stated that A1used to visit his house for soothsaying to his wife. Theacquaintance of the accused, the present appellant, with the family ofP.W.1 has been spoken to by P.W.1 himself as well as the otherwitnesses. In fact, P.W.2, the sister and mother-in-law of P.W.1, hasstated that the appellant used to come to the house and she hadcollected Rs.100/- for tying the talisman in order to achieve themagical power. By the evidence of P.W.2, which is also corroborated bythe evidence of P.W.4, it has been established that the appellant is asoothsayer and her contact with the local villagers was only inconnection with the said activity and she was also aiming to secure amagical power by giving human child sacrifice. 19. P.Ws.3 & 4 are the independent witnesses. P.W.3 is a coolieand his profession is to graze the cattle. He has deposed that at about12.30 p.m., on the date of occurrence he saw A1-Kamsala carrying thechild. Of course, he has deposed that he did not know as to whom thechild belonged to. However, he identified the child by stating that thechild was at that time wearing the cement coloured shirt and orangecoloured jatty namely, M.Os.2 & 3.20. One of the contentions of the learned counsel for theappellant is that the child was not identified either by P.W.3 or P.W.4.In this context, though it is true that P.W.3 could not identify thechild as to whom it belonged to, but, he was categorical in saying thatthe child's head was tonsured and he saw a wound on the back of thechild and the child was wearing M.O.2, Shirt & M.O.3, Jatty. Thisevidence of P.W.3 is also corroborated by P.W.4 who is an agriculturist https://hcservices.ecourts.gov.in/hcservices/ residing in the locality. According to P.W.4, at about 12.00 noon on thedate of occurrence, he saw A1 with the child and when he questioned A1for what reason he was taking the child, A1 only gave an evasive reply.In fact, P.W.4 has specifically stated that the child was the deceasedby name Ajeeth. He has also stated that at the time when he saw thechild with A1, the head was tonsured and he also saw a wound on the backhead. He has also deposed that the child was wearing cement colouredshirt (M.O.2) and orange coloured jatty (M.O.3). P.Ws.3 & 4 are theindependent witnesses. We have no reason to disbelieve their statementssolely on the ground that they falsely implicated the accused or thereare some discrepancies in their evidence. According to the learnedcounsel for the appellant, P.W.3 had not mentioned the presence of P.W.4when he was examined by the Investigating Officer and a statement wasrecorded under Section 161 Cr.P.C. In our opinion, merely because P.W.3has not referred to the name of P.W.4 as to his presence in the scene ofoccurrence before the Investigating Officer, we should disbelieve hisevidence made in the court, especially when there is no material to showthat he had animosity against A1, the appellant herein. Hence, in ourconsidered view, from the evidence of P.Ws.3 & 4, the prosecution hasproved that the child, which was found with A1, was the deceased-child.21. The next contention of the learned counsel for the appellantis that both P.Ws.3 & 4 had not identified the appellant. This argumentis totally a misreading of the evidence. A careful reading of theevidence of P.W.4 would show that he knew not only the accused but alsoshe was a soothsayer and fortune-teller. He has specifically implicatedthe appellant (A1) who alone had taken the deceased-child when he sawhim at about 12.00 noon on 12.07.2004. This evidence of P.W.4 is alsocorroborated by the evidence of P.W.3 when he referred to specificallythe name of the appellant (A1). Hence, from the evidence of P.W.3 & 4 ,the prosecution has not only proved that the child, which was in thecustody of the appellant (A1), was the deceased and the appellant (A1)was the soothsayer and fortune-teller.22. The next circumstance to implicate the accused is the evidenceof P.W.5. P.W.5 was examined by the prosecution to speak about therecovery of M.O.4-Copper Mandra Plate (measuring about 8" X 6" in size),M.O.5-Copper Mandra plate (measuring 8" x 6" size), M.O.6-Talisman,M.O.7-Talisman, M.O.8-Talisman and M.O.9-Talisman under the mahazar,Ex.P3. The above articles have been spoken to by P.W.2 while she hasdeposed before the court that those material objects were given to heronly by the Appellant (A1) after collecting a sum of Rs.100/- to attainmagical power. One of the further strongest circumstance is the recoveryof M.Os.2 & 3 under the mahazar, Ex.P5. P.W.7, a coolie residing atThiruvamoor Village, has deposed as to the arrest of the appellant andthe voluntary confession given by him. The admissible portion of theconfessional statement is Ex.P4. He has spoken about the recovery ofM.O.2, cement coloured shirt and M.O.3, orange coloured jatty from theappellant. M.Os.2 & 3 are the shirt and jatty worn by the deceasedchild when the deceased was seen with the appellant as spoken to byP.Ws.3 & 4. In a case of circumstances, the recovery plays animportant role. As the shirt, M.O.2 and jatty, M.O.3, which were saidto have been removed by A2 before the child was given in humansacrifice, had been recovered from A1. In these circumstances, it could https://hcservices.ecourts.gov.in/hcservices/ be safely concluded that the appellant was lastly seen with the deceasedby P.Ws.2 & 3. The recovery of M.Os.2 & 3 from the appellant has alsobeen established and by the above evidence, we have no hesitation tohold that the prosecution has established its case through the abovecircumstantial evidence.23. That apart , the evidence of P.W.2 cannot be totally ignored inthis case. Before we consider the evidence of P.W.8, we must once againrefer to the earlier judgment wherein this court had observed thatinsofar as the case of A1 is concerned, the evidence can be consideredindependently without reference to any of the observations made in thatjudgment. We have also referred that the evidence of P.W.8 wasdisbelieved solely on the ground that there was a possibility of P.W.8falsely implicating A2, since his statement was recorded after thestatement from P.W.6 was obtained. P.W.6 has spoken about the fact thathe lastly saw the appellant & A2 after the occurrence. Except P.W.6 asto the last seen theory and the eye witness P.W.8, no other witness hadimplicated A2 and therefore only, the evidence of P.W.8 was notaccepted by this court. However, if the evidence of P.W.8 is consideredwith reference to the evidence of P.Ws.2 & 3 and the recovery of M.Os.2& 3, in our considered view, the evidence of P.W.8 could be safelyaccepted insofar as implicating the appellant (A1). It is his specificevidence that on the evening of the fateful day, he saw the appellantand A2 carrying the child and when he asked A2 as to why he is takingthe child, A2 had replied that the child was not well and therefore, hewas taking the child to give treatment. Therefore, suspecting thebehavior of both the Appellant and A2, he hid himself in a nearby bushand noticed all that had happened subsequently. According to him, A2 hadremoved the clothes, M.O.2-shirt and M.O.3-jatty from the person of thechild and thereafter, he put some viboodhi, kumkum, turmeric and alsodid some poojas before closing the face with the cloth. He alsospecifically implicated that A1, who was present, caught hold the neckof the child and committed the murder and thereafter, both A1 & A2 hadthrown the dead body of the child into the well. The recovery of thebody of the deceased from the well is a corroborative material to theevidence of P.W.8. Further, as P.W.8 has spoken that the shirt andjatty namely, M.Os.2 & 3 have been removed before the child wasmurdered, the consequential recovery of those clothes from A1 alsocorroborates his evidence. In these circumstances, we have nohesitation to accept the evidence of P.W.8 so far as the occurrence isconcerned implicating the appellant (A1).24. For all the above reasons, we find no infirmity in the judgmentof the learned trial judge in convicting and sentencing the appellant/A1and, accordingly, the criminal appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ kmkTo1.The Principal Sessions Judge, Cuddalore2.The Superintendent, Central Prison III for Women, Puzhal, Chennai.3.The District Collector, Cuddalore4.The Director General of Police, Chennai5.The Public Prosecutor, High Court, Madras6.The Inspector of Police, Kadambuliyur Police Station, Cuddalore. 1 cc To M/s.S.Shantha Kumari, Advocate, SR.7684.Crl.A.No.656 of 2007 MRD(CO)RVL 26.02.2008