SenthilKumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANCRL.A.NO.776 of 2008SenthilKumar ..Appellant/Accused IVs.State rep. by Inspector of Police,Pallipalayam Police Station,Pallipalayam,Tiruchengodu Taluk,Namakkal District. ..Respondent/Complainant(*)(Crime No.514/2004)This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the conviction and sentence imposed in S.C.No.34 of2005 dated 29.8.2006 on the file of Additional District SessionsCourt-cum-Fast track Court, Namakkal. For Appellant : Mr.B.RajamaniFor Respondent : Mr.N.R.Elango, Additional Public ProsecutorJUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the Judgment of the Additional District cumSessions Court-cum-(Fast Track Court)Namakkal made in S.C.No.34 of2005 whereby the appellant herein ranked as A1 stood charged underSection 302 IPC (2 counts) while the other accused ranked as A2 to A8stood charged under Section 201 IPC and on trial, the appellant wasfound guilty of the charges of murder and awarded life imprisonmentalong with the fine of Rs.1000/- in default to undergo 2 monthsSimple Imprisonment and the sentence is ordered to run concurrently,while A2 to A8 found guilty under Section 176 of the IPC and awardedone month SI along with fine of 500/- and in default to undergo oneweek simple imprisonment. https://hcservices.ecourts.gov.in/hcservices/

2. The short facts necessary for the disposal of this appeal canbe stated as follows:The first accused is native of Veppatai Village. Hebelonged to Hindu faith. PW3, one Chitra belonged to christian faith.They loved each other and married in a temple at Pallipalayam on30.5.2004, as a result they had two children, viz.,one boy aged 4years old and female child of 2-1/2 years. After marriage, PW3followed Hindu faith and putting forth her prayer. After sometime,she again began to follow christian faith by making her prayers andquarrel arose between the spouse on that ground. She treated thechildren cruelly. The first accused became vexed and thus he tookboth the children and threw them into a well situated in the field ofone Palaniappan. Both the children immersed in the well and died. b. PW1, the Village Administrative officer was in hisoffice at about 8' O clock, the 1st accused/appellant appeared beforehim and gave extra judicial confession statement and the same wasrecorded and which is marked is Ex.P.1. c)Thereafter, P.W.1 proceeded to the respondent policestation whereby, PW.11 Inspector of Police was on duty. P.W.1produced the accused and also gave a complaint Ex.P.1 along with acovering letter which is marked as Ex.P.2 to PW.11, on the strengthof which, a case came to be registered in Crime No.541/2004 underSections 302 and 201 IPC. Ex.P.10, the Express FIR was sent to theCourt. P.W.11 took up the investigation and arrested the firstaccused and recorded the confession statement and the admissible partis marked as EX.P.3 and pursuant to which he recovered M.O.1 Cycleunder the cover of Mahazar Ex.P.5 Following the same, the secondaccused was arrested and he gave confession statement voluntarily inthe presence of witnesses and pursuant to which ,M.O.2, bones of thechildren were recovered under the cover of Mahazar Ex.P.7 and all theother accused who were involved in the offence were arrested on thevery same day.d)Thereafter, a requisition was forwarded to the JudicialMagistrate, Namakkal for sending the bones and ash seized of thechildren for chemical analysis. Ex.P.8 is the letter from theJudicial Magistrate, Thiruchengode to the Director, Tamil NaduForensic Science Laboratory which resulted in Ex.P.9, the anatomyeport P.W.11, the Inspector of Police, took up further investigationand on completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 11 witnessesand also relied on 12 exhibits and 3 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances found https://hcservices.ecourts.gov.in/hcservices/ in the evidence of prosecution witnesses. The accused flatly deniedthe same as false. No defence witness was examined. The trial court,after hearing the arguments advanced and scrutinizing the materialsavailable, took the view that the prosecution has proved the casebeyond reasonable doubt found him guilty and awarded punishment asreferred to above. Hence this appeal has arisen at the instance of1st accused/appellant herein. 4. Advancing arguments on behalf of the learned counsel forthe appellant, learned counsel would submit that the prosecution hasmiserably failed to prove its case by adducing any evidence.According to the Prosecution, the occurrence has taken place on30.5.2004 at 8 p.m, the father of the children threw both thechildren viz.,one male child aged four years and one female childaged 2-1/2 years in the well situated in the field of onePalaniappan and caused the death of the children and thereafter withthe assistance of other accused, he took the dead body of thechildren and cremated. In order to substantiate the charges levelledagainst the appellant, the prosecution had no direct evidence tooffer. It mainly rested upon the extra judicial confession alleged tohave been given by A1 to PW1, Village Administrative Officer on30.5.2004. A very reading of the evidence of Village AdministrativeOfficer and the evidence of PW.11 the Investigating Officer wouldclearly indicative of the fact that such a confessional statementcould not have been given at all. It was PW2 who took the firstaccused to the Office of PW1, Village Administrative Officer and thealleged extra judicial confession statement has been recorded by theVillage Administrative Officer, but PW2 has turned hostile. Undersuch circumstances, the prosecution was duty bound by adducing entireevidence to substantiate the extra judicial confession. A perusal ofthe evidence given by PW1 would clear that extra judicial confessiongiven by the first accused was recorded by him and at that time, thevillage assistant was also present, but he was not examined beforethe Court. Apart from that, according to PW1, he was actually notavailable in the village till 3.6.2004, but the extra judicialconfession, as per the evidence put forth by the prosecution, wasrecorded on 3.6.2004 and hence he could not have recorded the saidstatement. According to PW1, A1 appeared before him at 8 a.m. andconfession statement was recorded and thereafter he took him to therespondent police station and produced before P.W.11, Inspector ofPolice. Even P.W.11, even at the commencement of the chiefexamination has stated that at about 6 a.m. on 3.6.2004, when he wasin the police station, PW1 produced A1 before him which would clearlyindicative of the fact that such an extra judicial confession couldnot have been come into existence as put forth by the prosecution.The specific cause of death according to the prosecution was thatthe children were threw into the well and that they died due toasphyxia due to immerse into well and thereafter they were crematedand nothing was actually recovered, except the bones and ashes. Theprosecution was enable to fix the cause of death. Added further the https://hcservices.ecourts.gov.in/hcservices/ counsel, PW3, the mother of children, though treated as hostile, hasdeposed that the death of the children was natural and both thechildren were immersed into well and it was an accident and undersuch circumstances, the prosecution had neither direct or indirectevidence to offer. But, the lower court has taken an erroneous viewthat two minor children were threw into the well and found theaccused guilty and hence it is a fit case where the judgment of thetrial Court has got to be set aside and the appellnt is entitled foracquittal in the hands of this Court.5. Heard the learned Additional Public Prosecutor on theabove contentions and the Court paid its anxious consideration on thesubmissions made.6. It is not in controversy that two children of theaccused/appellant and PW3 viz. One boy aged about 4 years and afemale child aged 2 ½ years were done to death and at the time ofinvestigation, only a part of bones of the children has beenrecovered. It is needless to state that in a case like this, theCourt can sustain the conviction, if sufficient evidence is broughtto the notice of the Court. In the instant case, the prosecutionrelied on the confession statement of the accused and the trial courthas also accepted the evidence of PW1, Village AdministrativeOfficer, to whom the extra judicial confession alleged to have beengiven by the first accused on 3.6.2004. Before accepting the case ofthe prosecution, in a case like this, if it is rested upon the extrajudicial confession, the Court must apply two tests. Firstly, underwhat circumstances the extra judicial confession was alleged to havebeen given by the accused and secondly whether the evidence of theperson to whom extra judicial confession alleged to have been giveninspires confidence of the Court. According to the prosecution, PW1was present in his office on the morning hours of 3.6.2004, but inthe cross examination, he has categorically deposed that till3.6.2004 he was not available in the village. Secondly, it was PW2,who took the first accused to the office of PW1, but PW2 has turnedhostile. It is the evidence of PW1 that PW2 produced A1 before him inhis office at about 8 a.m. and he recorded the extra judicialconfession given by A1 and took him to the police station andproduced before the police officer at about 11 a.m.. Contrarily,PW.11 Inspector of Police has given an evidence stating that when hewas in the police station at about 6 a.m., A1 was produced by PW1.All would go to show that extra judicial confession could not havebeen recorded, as put forth by the prosecution. Under suchcircumstances, the extra judicial confession which was relied upon bythe prosecution was not proved and accepted by the trial Court. Itcan be well stated that the prosecution had no evidence to offer andall the witnesses are of no use to the prosecution case. Even PW3,the mother of the children had gone to the extent of telling that itwas the natural death. Under such circumstances, the prosecutionneither proved the cause of death, nor brought any acceptable https://hcservices.ecourts.gov.in/hcservices/ evidence through PW1 as to the extra judicial confession or any otherpiece of evidence pointing to the guilt of the accused with thecrime. 7. Accordingly, the conviction and sentence imposed uponthe appellant/1st accused by the trial Court are set aside. He isacquitted of the charges. The appellant/1st accused is directed tobe set at liberty forthwith, unless he is required in connection withany other case. 8. In the result,, the Criminal Appeal is allowed.Sd/Asst.RegistrarDated : 11.08.2009(*) Amended as per the order of this Court dated 22.10.2009 and made in M.P.No.1/09 in Crl.A.No.766/08sd/-Asst.RegistrarDated : 22.10.2009./true copy/Sub Asst.RegistrarVJYTo1. The Additional District Session Judge, cum Fast Track Court, Namakkal.2. -do- Through The Principal District & Sessions Judge, Namakkal.3. The Superintendent, Central Prison, Coimbatore.4. The District Collector, Namakkal. https://hcservices.ecourts.gov.in/hcservices/

5. The Director General Police, Mylapore, Chennai.6. The Inspector of Police, Pallipalayam Police Station, Pallipalayam, Tiruchengode Taluk, Namakkal District.7. The Public Prosecutor, High Court, Madras.8. The Section Officer, Criminal Section, High Court, Madras.+ 1 c.c. to Mr. B. Rajamani, Advocate. S.R.No.34979.Crl.A.No.776 of 2008NTK (CO)GSK 23.10.2009.