Madras High Court
Mariappan vs State Represented By on 28 January, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL NO.315 OF 2006 Mariappan .. Appellant Vs. State represented by the Inspector of Police, Maniyachi Police station, Tuticorin District Crime No.409 of 1992 .. Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment passed in S.C.No.282 of 2005, dated 13.02.2006 on the file of the learned Additional Sessions Court-cum-Fast Track Court-I, Tuticorin. !For Appellant ... Mr.R.Anand ^For Respondent ... Mr.P.N.Pandithurai, APP :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.) This criminal appeal has arisen from the judgment of the Fast Track Court No.1, Tuticorin made in S.C.No.282 of 2005, whereby the accused/appellant stood charged under Section 302 IPC, tried and found guilty as per the charge and awarded with life imprisonment along with a fine of Rs.2000/-, in default to undergo one year R.I.
2.The short facts necessary for the disposal of this appeal could be stated thus:
a)P.W.1 is the husband of P.W.2. P.W.3 is the brother of P.W.2. P.W.4 is also the resident of Kombadi village. The deceased Suseela, a girl aged about 4 years, was the daughter of P.Ws.1 and 2. The appellant/accused and the other accused, in whose respect the case was split up, by name Chinnasamy, were involved in prohibition cases registered by the Maniyachi Police station. Both the accused have thought that the informant was P.W.1 and thus, they developed enmity and on number of occasions, they were abusing P.W.1.
b)On one occasion, the other accused Chinnasamy along with number of persons, damaged the house of P.W.1. Two months prior to the occurrence, the accused/appellant has stolen Rs.300/- from the shop of one Srinivasan and a case was registered by the respondent police station. From that time onwards, the accused/appellant was absconding. Donations were collected for the festival occasion in the temple at Kombadi village by the other accused Chinnasamy, who was the Nattamai in the village. In the meeting convened, accounts were demanded by P.W.1 and others. The said Chinnasamy refused to hand over the accounts. On that ground also, Chinnasamy was on inimical terms with P.W.1.
c)The accused/appellant, who was absconding for a while, came to the house of the other accused Chinnasamy on 20.11.1992. The next day, on 21.11.1992 at about 8.30 a.m., P.W.1 was reaping grass in the nearby field. When P.Ws.2 and 3 and others were inside the house, the deceased Suseela was playing in front of the house. At about 9.00 a.m., P.Ws.2 and 3 and others heard the distressing cry of the child. They came outside and witnessed the accused taking the child on his shoulder along with aruval in his hand and was running. Further, they raised alarm. At that time P.W.1, who was in the field, also turned and saw the accused with the child. When all of them were chasing the accused, the accused cut the child indiscriminately with the aruval and caused the death of the child. The accused, leaving the dead body, fled away from the place of occurrence.
d)P.W.1 went to the respondent police station at about 12.30 p.m., where P.W.7 was the Sub Inspector of Police, to whom P.W.1 gave Ex.P.1, the report, on the strength of which, a case came to be registered in Crime No.409 of 1992 under Section 302 IPC. Ex.P.5, the F.I.R. was despatched to the court. On receipt of the copy of the F.I.R., the Inspector of Police one Manoharan, who was attached to the respondent police station, took up the investigation. During investigation, he died and hence, P.W.11, Manoharakumar, the Inspector of Police, after perusing the case records, gave evidence on behalf of him also.
e)The said Investigator took up the investigation, proceeded to the spot, made an inspection in the presence of the witnesses and prepared Ex.P.7, the observation mahazar and Ex.P.13, the rough sketch. He 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. He recovered material objects from the place of occurrence, namely M.O.6, bloodstained earth and M.O.7, sample earth.
The dead body was sent to the Government Hospital, Ottapidaram for the purpose of post-mortem along with the requisition.
f)P.W.5, the Doctor attached to Ottapidaram Government hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.3, the post-mortem certificate, wherein he has narrated the injuries found on the dead body and has also opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained on her.
g)Pending Investigation, the accused was arrested on 12.12.1992 at about 7.30 p.m. in the presence of the witnesses. At that time, he gave confessional statement, which was recorded by the Investigating Officer. The admissible part of the same was marked as Ex.P.15. Following the same, the accused produced M.O.1, aruval, which was recovered under a cover of mahazar in the presence of the witnesses. The accused was sent for judicial remand.
h)Further investigation was done by P.W.11. All the material objects recovered from the place of occurrence, from the dead body of the deceased and M.O.1, aruval recovered from the accused were sent for chemical analysis by the Forensic Science Department. Ex.P.19, the Chemical Analyst's report and Ex.P.20, the Serologist's report were received. On completion of the investigation, the Investigating Officer has filed the final report.
i)The case was split up in respect of one Chinnasamy, against whom the case was registered under Section 302 r/w S.109 IPC. The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and relied on 20 exhibits and 7 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 considering the submissions made and perusing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellant guilty and awarded punishment, which is the subject matter of challenge before this court.
3.The learned counsel for the appellant, in his sincere attempt in assailing the judgment of the court below, made the following submissions:
a)The prosecution has failed to explain an inordinate delay in registering the case and also sending the F.I.R. to the nearby Magistrate Court. The occurrence has taken place at 9.30 a.m., but the information was given to the police only at 12.30 hours and thus, there was an inordinate delay of three hours. Though the case was registered at 12.30 hours, the F.I.R. has reached the court at 6.15 p.m. and thus, there was a delay of nearly 6 hours. This was also not explained.
b)Further, no specific motive is made against the appellant/accused. A perusal of the complaint would clearly reveal that P.W.1 while gave the complaint, did not mention any specific motive at all. All the motives were available only against Chinnasamy, against whom the case was registered under Section 302 r/w S.109 IPC, but he was acquitted of the charges, disbelieving the evidence of the very same eyewitnesses. Hence, the lower court should have taken the same yardstick in respect of the appellant also and should have acquitted the appellant. But, it has failed to do so.
c)The learned counsel would further add that though the prosecution would claim that the weapon was recovered on the confession made by the accused, it was sent for chemical analysis after a period of 2 years. The Chemical Examiner's report would reveal that no human blood was detected. Under these circumstances, it would be quite clear that the prosecution has not proved the case beyond reasonable doubt.
d)There was a meeting convened, demanding the accounts in respect of the donations made for the temple festival and there was a refusal by Chinnasamy.
But, nowhere in the complaint, it was found. These are all exaggerated versions in order to show as if the appellant was staying in the house of Chinnasamy on 20.11.1992. Further, two cases in Crime Nos.408 and 410 of 1992 were registered against the appellant, but these are all nothing, but foisted against the appellant in order to implicate him in the offence. Hence, P.W.1 has given exaggerated version. So far as the scene of occurrence was concerned, the prosecution has come forward to state that the child was playing in front of the house of P.W.1 and the accused took the child from that place and the occurrence has taken place away from that place. But, when the Investigating Officer prepared the sketch, he has not mentioned the place where-from the child was taken. Had the child not been taken from the place where it was playing, as alleged by the prosecution, P.Ws.2 and 3 could not have seen the occurrence at all. Hence, their evidence should have been rejected by the trial court. Therefore, the appellant is entitled for acquittal in the hands of this court.
4.The court heard the learned Additional Public Prosecutor on the above contentions.
5.The court has paid its anxious consideration on the submissions made. It is not in controversy that the child aged about 4 years, the daughter of P.Ws.1 and 2, was done to death in an incident that took place at about 9.30 a.m. on 21.11.1992 in the place as shown by the prosecution in the sketch prepared by the Investigating Officer. The dead body was subjected to post-mortem by P.W.5, the Doctor. He has issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the child died out of homicidal violence was never questioned by the appellant at any stage of proceedings. Hence, without any impediment, it could be recorded so.
6.In order to substantiate the charges levelled against the accused/appellant that it was he, who attached the child and caused her death instantaneously, the prosecution rested its case on the evidence of P.Ws.1 and 2, the parents of the child and P.W.3, the brother of P.W.2. P.W.3 has turned hostile. But, the prosecution had to its advantage the evidence of P.Ws.1 and 2. From the evidence of P.Ws.1 and 2, it would be quite clear that in the past, number of cases were registered by Maniyachi Police Station against the appellant and one Chinnasamy also, since they were indulging in illicit arrack activities. On previous occasion also, both these persons were abusing P.W.1. It is also quite clear from the evidence of P.Ws.1 and 2 that the said Chinnasamy and the appellant were close relatives to each other. Further, the accused was absconding for a period of two months pursuant to the theft case registered against him. According to P.Ws.1 and 2, on the date of occurrence, when P.W.2 was inside the house, she heard the distressing cry of the child and she came outside and found the accused, taking the child in his shoulder with aruval in his hand and the accused was running. When P.W.2 shouted along with the other witness P.W.3, P.W.1 heard the same. According to P.Ws.1 and 2, they were chasing the accused, but they could not reach him. Further, they witnessed the accused cutting the child indiscriminately with aruval and causing her death instantaneously. Despite cross-examination in full, the evidence of P.Ws.1 and 2, who are the eyewitnesses, remained unshaken.
7.In the instant case, the medical evidence was in full support of the ocular testimony projected through P.Ws.1 and 2. Now, the contentions put forth by the learned counsel for the appellant have got to be considered. Much comment was made on the delay caused in registering the case and also despatching the F.I.R. to the court. The place of occurrence is situated 9 Kms. away from the respondent police station. The occurrence has taken place at about 9.30 a.m. The case was registered by P.W.7, the Sub Inspector of Police at 12.30 hours. Taking into consideration the nature of the act committed by the accused and also the fact that the police station is situated 9 Kms. away from the place of occurrence, the delay of three hours, in the opinion of the court, is natural and not deliberate. Further, after registration of the case, it has reached the court at 6.15 p.m. Thus, there was a delay of 5 to 6 hours in sending the F.I.R. to the court. It is brought to the notice of the court that the Judicial Magistrate Court is situated 13 Kms. away from the police station. Even assuming that there was delay in sending the F.I.R. to the court, the court is of the considered opinion that no prejudice could have been caused to the accused, since there was no further embellishment or improvement in the case, in view of the facts and circumstances of the case as narrated above.
8.In the instant case, the other contention put forth by the learned counsel for the appellant that the appellant had no motive at all has got to be rejected. According to P.Ws.1 and 2, the appellant was indulging in illicit arrack activities along with Nattamai Chinnasamy and number of cases have been registered by Maniyachi Police Station against the appellant accused. Apart from that, when the evidence of P.W.1 was scrutinized, the facts that there was demand of accounts by P.W.1 and others and there was denial of rendering accounts by the said Chinnasamy were spoken by P.W.1 during trial. Hence, the motive for the accused to commit the crime was spoken to by P.Ws.1 and 2.
9.The other contention of the learned counsel for the appellant/accused is that in the instant case, there was delay in placing the material objects for chemical analysis and further, the Serologist's report did not contain human blood. It is pertinent to point out that though there was delay noticed in placing the weapon before the Forensic Department and also the report was received that there was no human blood noticed, the court is of the considered opinion that when direct evidence is available pointing to the act of the accused, the court cannot reject the prosecution case, though the scientific evidence did not support the prosecution case. Further, Crime Nos.408 and 410 of 1992 were registered by the respondent police station against the appellant herein. The contention that in order to show that the appellant was available on 21.11.1992, these cases have been registered, cannot be accepted for the simple reason that in a given case where there is direct evidence available, there is no need for the police to register foisted cases. Further, so far as Crime No.408 of 1992 was concerned, the specific contention of the prosecution was that after the registration of the theft case, the accused was absconding and thereafter, he appeared a day prior to the date of occurrence.
10.In the instant case, both the witnesses, namely P.Ws.1 and 2, saw the barbarous act of the accused/appellant, in which he has attacked the child with the deadly weapon like aruval and caused her death instantaneously. The act of the accused in taking the 4 years old child and killing the same has got to be dealt with sternly. The lower court was perfectly correct in finding the accused/appellant guilty under Section 302 IPC and awarding life imprisonment along with fine and default sentence. Hence, the judgment of the lower court does not require any interference either factually or legally. The criminal appeal must fail. Accordingly, this criminal appeal is dismissed.
vvk To
1.Additional Sessions Court-cum-
Fast Track Court-I, Tuticorin.
2.The Inspector of Police, Maniyachi Police station, Tuticorin District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.