Madras High Court
Palanivel vs State Inspector Of Police on 18 December, 2006
Bench: Prabha Sridevan, K.N. Basha
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 18/12/2006 CORAM The Honourable Mrs. Justice PRABHA SRIDEVAN and The Honourable Mr. Justice K.N. BASHA Criminal Appeal No.604 of 2003 $1. Palanivel 2. Sarasu .. Appellants Vs State Inspector of Police, Kumbakonam East Police Station Crime No.206 OF 2001. .. Respondent Prayer Criminal Appeal filed under Section 374 of the Code of Criminal Procedure praying to set aside the Judgment of conviction and sentence dated 28.2.2003 made in S.C. No.146 of 2002 on the file of the Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam. !For First Appellant ... Mr. S. Krishnamoorthy For Second Appellant ... Mr. V.N. Neesh ^For Respondent ... Mr. Balaguru, Additional Public Prosecutor. :J U D G M E N T
(Judgment of the Court delivered by PRABHA SRIDEVAN, J.) Little Mohanapriya, aged three, died not for any fault of hers, but because she was a hindrance to the amorous activities of the appellants - the child's mother (A-2) and her paramour (A-1).
The appellants have preferred this appeal against the conviction and sentence awarded by the learned Additional District and Sessions Judge, Kumbakonam in Sessions Case No.146 of 2002 dated 28.2.2003 finding A-1 guilty of the offence punishable under Section 302 r/w 34 I.P.C. for which he was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.1 lakh and on failure to pay the fine amount, to undergo rigorous imprisonment for a further period of 12 years and also finding him guilty under Section 201 I.P.C. for which he was sentenced to undergo rigorous imprisonment for three years and finding A-2 guilty of the offence punishable under Section 302 r/w 34 I.P.C. for which she was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.5,000/- and on failure to pay the fine amount, to undergo rigorous imprisonment for a further period of 2 years and also finding her guilty under Section 201 I.P.C. for which she was sentenced to undergo rigorous imprisonment for 3 years.
2. The prosecution has based its case on circumstantial evidence.
3. A-2 deserted her husband PW.17 to live with A-1. A-1, A-2 and the deceased child lived together in the house belonging to PW.18. A-1 and A-2 felt that the presence of the deceased was a hindrance to their illicit affair. This is the motive. The deceased sustained injuries and was admitted in hospital. PW.3, PW.4 and PW.7, in-patients in the hospital, are witnesses who speak of the accused attending to the child. PW.6, PW.8 and PW.9 are nurses and the male nurse in the hospital, who also speak of the presence of Accused 1 and 2 in the hospital. According to nurse PW.6, the deceased was taken away from the hospital without being duly discharged. PW.10 and PW.11 are the witnesses who have last seen the deceased with Accused 1 and 2. This is how the prosecution has established the chain of evidence.
4. P.W.1, the Village Administrative Officer of Theperumanallur Village received a message at 6.00 a.m on 15.05.2001, that a child was lying dead on the road. Immediately, he and the Village Assistant P.W.2 went to the scene of occurrence. There, they found a bag. When the bag was opened, they found the body of a dead female child about three years old. He made enquiries with the people in the nearby area, but no one knew about the identity of the child. At about 8.00 a.m, he went to his Taluk Office and sent one Kaliyamoorthy to remain with P.W.2 at the scene of occurrence. At about 8.30 a.m, he went to Thiruvidaimaruthur Police Station and lodged the complaint, Ex.P.1 with PW.20, the Sub-Inspector of Police. On the basis of Ex. P.1 complaint, PW.20 registered a case of suspicious death, and forwarded the Express F.I.R., Ex.P.30 to the Magistrate and the higher authorities. PW.25, who was then the Circle Inspector of Thiruvidaimaruthur Police Station, received the copy of the F.I.R., went to the scene of occurrence and prepared the observation Mahazar, Ex.P.2 in the presence of PW.2 and another witness. He arranged for photographs to be taken by PW.21. He prepared the rough sketch, Ex.P.18. He conducted the inquest on the dead body of the deceased between 10.00 a.m and 1.00 p.m and prepared the inquest report, Ex.P.19. To ascertain the cause of death, he sent the requisition for post-mortem through P.W.23 to Thiruvidaimaruthur Government Hospital. He recovered the blood stained polythene bag (M.O.1) with the thread under Ex.P.3. He recorded the statements of PW.2 and others. PW.14, the post- mortem doctor, on receiving the requisition for post-mortem conducted the autopsy on the dead body of the child. The post-mortem certificate, Ex.P.8 reads thus:
"The body was first seen by the undersigned at 3.00 p.m on 15.05.2001. Its condition then was Rigor Mortis present in all the four limbs. Post-Mortem commenced at 4.00 p.m on 15.05.20001. Appearance found at the post-mortem, moderately nourished bode of female child lies on its back. Both hands lie by the side of the body. Both the legs abducted at the hip joint and semiflexed at the knee points. Multiple abrasions seen on the dorsal aspect of both foot. Eyes partially opened. Cornea Edamatus. Both pupils dilated. Rigor mortis passed off in all the four limbs. Multiple (NC) scorches of varying sizes present all over the body more on the face, upper part of chest and superpubic region. Middle 1/3 of the left humerus bone is irregular and bulky. On examination of the left humerus bone, there is a healed fracture in the middle 1/3 of the bone. There is a circular wound with healing margins with the periphery (NC) area at the centre and measuring 2cm x 1 . cm x 1 cm. Both labia majura abematus well separated from each other exposing the inner structures. Anal opening is very loose and faecal matter comes out of the opening. A contusion present in the right side of forehead 4 cm x 3 cm contusion in the left elbow 2 cm x 3 cm. Laceration present in the left parietal region of skull 1 . cm x 1 cm x . cm. Mouth was closed. Tongue within the mouth.
On internal examination, abdomen slightly distended. Stomach contains 500 ml of partially digested food materials. Intestine normal. C/s Mucosa congested contain yellowish paste like materials.
Final opinion of PM No.9/2001 dated 15.05.20001 given on 1/11/2001, report received.
1)Report of blood samples, received from N.Gunachandran Assistant Chemical Examiner to Government, Assistant Director - Serology - Chennai. The item sent for Serological examination found to belong to Group 'O'.
2)The Assistant Director and Assistant Chemical Examiner to Government Regional Forensic Science Lab - Thanjavur. The specimens of stomach, intestine, Liver and kidney did not contain poison.
3)The report from Assistant Director and Assistant Chemical Examiner to Government - The vaginal swab and vaginal smear did not contain, semen(or) spermatozoa.
4)The report of skin samples sent for pathological report of the ulcers not received so far.
The Postmortem Report is Ex.P.8.
Opinion: The deceased would appear to have died of shock and hemorrhage due to injury to skull and brain."
5. PW.25 then examined PW.14, the post-mortem doctor. He searched for the accused in other places, he arranged for notices to be published in newspapers and information given in Television. On 17.05.2001, PW.17 came to the office of PW.25 and informed him that the child whose photograph was published in the newspapers is his child. On the same date, PW.17 together with two others went to Tanjore hospital and identified the dead body of the child. On 19.05.2001, he received an information about the accused in connection with Crime No.101 of 2001, Nadukkaveri Police Station. In the mean time, PW.27 the Inspector of Nadukkaveri Police Station found the Ambassador car, in connection with Crime No.101 of 2001, was proceeding on the Thiruvaiyaru By-Pass Road from Tanjore to Kumbakonam. The car was stopped. It was driven by A-1 and A-2 was sitting in the rear seat. When he saw the police, A-1 stopped the car and attempted to run away and he fell down in the Jambu Cauvery Channel. PW.27 arrested A-1 and A-2. He admitted A-1 in the Tanjore Government Hospital and kept A-2 in police custody at the All Women Police Station. Again, he went to the hospital at about 20.00 hours and recorded the confessional statement of A-1 in the presence of the doctor who gave him first aid, PW.26 and another. The admissible portion of the confession statement is Ex.P.21. From this, he recovered a rexine bag M.O.6, blood stain T-Shirt M.O.7, blood stained sari M.O.8 and knife which is connected with the Nadukkaveri Police station case under recovery Mahazar Ex.P.22. Again at 1.30 am, he recovered a wooden reaper rod M.O.9 under recovery mahazar Ex.P.23. At 20.05.2001, at 7.00 a.m, he recorded the confessional statement of A-2 in the All Women Police Station. Admissible portion of the confession statement is Ex.P.24. From this, he recovered the blood stained jacket M.O.10, under Ex.P.25. PW.27 admitted A-1 in the Tanjore Medical College Hospital for treatment of his injured leg and remanded A-2 to judicial custody. On 22.5.2001, PW.27 handedover Ex.P.21 and confessional statement and Ex.P.22, 23 and 25 mahazar. PW.25 continued the investigation. The case of suspicious death was altered into one under Section 302 and 201 I.P.C. The altered F.I.R is Ex.P.20. This was forwarded to the Judicial Magistrate and the Inspector of Kumbakonam East Police Station (PW.28). On 26.05.2001, PW.28 took charge of the investigation. He went to the Kumbakonam Government Hospital, the scene of occurrence and prepared the observation mahazar Ex.P.4 and the rough sketch Ex.P.27. He recorded the statements of P.Ws.1, 3, 7, 14, 21, PW.4 and others. He recorded the statements of Pws.6, 8, 9, 10, 11 and others on 27.05.2001. On 28.05.2001, he recovered the register maintained by the Cycle Mart to show the list of persons who took the cycles on hire, under Ex.P.6. Further he conducted enquiries on 30.05.2001, 10.06.2001 and 11.06.2001. On 18.06.2001, he forwarded the material objects for medical analysis under Ex.P.14 requisition. On 18.06.2001, he arranged for test identification parade by PWs.3, 10 and PW.6 in the presence of the Judicial Magistrate, Papanasam, PW.16. He arranged for test identification parade at Trichy Central Prison on 03.09.2001. He went to the Kumbakonam Government Hospital and recorded the statements of witnesses on 02.11.2001. He recorded the statement of PW.14. He obtained the chemical analysis report. On completion of investigation, he filed the charge-sheet.
6. To prove its case, the prosecution has examined the witnesses, PWs.1 to 28, marked Exs.P.1 to 27 and produced Mos.1 to 10.
7. When the accused were questioned under Section 313 Cr.P.C., they denied each and every circumstance put up against them and stated that they have been falsely implicated in this case; no one was examined on their side.
8. Learned counsel for the second appellant filed his written arguments and also made his submissions. The learned counsel for the first appellant adopted the arguments. According to him, the entire case is based on circumstantial evidence and none of the links are complete. There is no motive and the evidence of PW.18 that A-1 and A-2 and the deceased lived in his house as tenant is unbelievable, because according to PW.18, the father of A-1 had paid the rental advance and it is extremely doubtful if a father will assist his son in illicit affairs.
9. The evidence of PW.3 and PW.10 cannot be believed since they have failed to identify A-1 in the test identification parade so their entire evidence has to be eschewed.
10. Learned counsel for the appellants submitted that the evidence of PW.7, who claims to be an inpatient can not be believed since there is no evidence to show that she was an inpatient at the same time when the deceased was admitted in the ortho-ward of the hospital.
11. Learned counsel for the appellants submitted that the evidence of PW.6 and PW.8, nurses and PW.9, the male nurse is also not reliable, since none of them have clearly spoken about the presence of A-1 in the hospital. At best, their evidence would only show that A-2 was in the hospital with the deceased and nothing would turn on that since A-2 is the mother of the deceased and would naturally be with her child in the hospital.
12. Learned counsel for the appellants submitted that the evidence of PW.10 and PW.11 who have been examined to support the "last seen theory" must be rejected since PW.10 failed to recognise A-1 in the test identification parade and it has been elicited in the examination of PW.11 that there is enmity amongst auto drivers and A-1 had fought with the auto drivers group and therefore, PW.11 is an inimical witness. PW.11's presence at the place where he claims to have seen A-1 and A-2 at the deceased is extremely artificial.
13. Learned counsel for the appellants submitted that PW.12, whose cycle A-1 is alleged to have borrowed is also not believable, because according to him, when A-1's father approached him to borrow the cycle he refused and immediately thereafter, when A-1 requested that a cycle should be borrowed, he allowed A-1 to take the cycle on hire and there are discrepancies with regard to the time when A-1 is said to have borrowed the cycle from PW.12 and the time when PW.10 and PW.11 are supposed to have seen the accused.
14. Learned counsel for the appellants submitted that the evidence of PW.13 is really irrelevant and apart from stating that A-1 picked up polythene bag, there is nothing in his evidence to link the accused with the occurrence. Most importantly, the learned counsel submitted that the case of the prosecution is that the accused were found in the Ambassador Car which was connected with the Crime No.110 of 2001 at Nadukkaveri Police Station, but the arrest card in connection with that offence has not been produced. The case of the prosecution that A-1 was taken in police custody from the Kumbakonam Government Hospital to obtain the confessional statement is not supported by any evidence and the case of the prosecution that A-2 was enquired in the All Women's Police Station in Thiruvidaimaruthur is also not supported by any evidence. Therefore, the arrest and recovery are extremely suspect and no reliance can be placed on them.
15. According to the learned counsel, the motive, the last seen theory and the arrest, which are the links in the case of the prosecution are very weak links and therefore, the prosecution cannot be said to have proved the case beyond reasonable doubt.
16. The learned counsel for the appellants placed reliance on the following judgments :
2005 (1) L.W. (Crl.) 161 (Sasikumar vs. State rep. By Inspector of Police, Karungalpalayam Police Station, Erode District) This was a case of circumstantial evidence, wherein a Division Bench of this Court held that the duty cast upon the prosecution to establish all the circumstances which will form a complete chain pointing to the guilt of the accused and in absence of others connecting the circumstances, presence of motive alone would not further the case of the prosecution. According to the learned counsel for the appellants, it is applicable to the present case. Since the circumstantial evidence chain was not completed. 2004 S.C.C. (Crl.) 126 (State of Haryana vs. Jagbir Singh and Another) This was also a case of circumstantial evidence, wherein the Supreme Court held that inference of guilt would be justified only when all the incriminating circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons and these circumstances have to be proved beyond reasonable doubt.
According to the learned counsel for the appellants, in the present case, identification of the accused in the Test Identification Parade failed and if those witnesses are excluded, as also the evidence of P.W.11, who was inimical to A-1, then the prosecution had not placed materials which are incompatible with the innocence of the accused.
2004 S.C.C. (Crl.) 1167 (Anil Kumar Singh vs. State of Bihar) In this case, the Supreme Court held that the Court has to be cautious and avoid the risk of allowing mere suspicion, however strong, to take the place of proof. The learned counsel for the appellants submitted that even assuming without admitting there was some evidence to show that A-1 and A-2 had an illicit affair, it cannot be presumed that they wanted to do away with the deceased.
2005 S.C.C. (Crl.) 853 (Kojja Sreenu vs. State of Andra Pradesh) In this case, the Supreme Court rejected the evidence of a witness who had seen the accused only on the date of the incident and could not remember the particulars of the dress worn by him. The learned counsel submitted that the witnesses who saw the accused in the hospital and on the road, had failed in the TIP and therefore their evidence is not reliable.
2005 S.C.C. (Crl.) 801 (State of Madya Pradesh vs. Ghudan) In this case, there were serious discrepancies in the identification of the accused. In the present case since P.Ws.3, 6 and 10 were unable to identify A-1 in the test identification parade, A-1 cannot be convicted. 2002 S.C.C. (Crl.) 1100 (Nesar Ahmed and another vs. State of Bihar) This was a case of burning a bride to death. The Supreme Court held that the prosecution had not established the vital link of the appellants'presence in the house at the crucial time. Since the vital link to complete the chain of circumstances became extremely doubtful, the prosecution cannot be held to have established the guilt of the appellants beyond reasonable doubt. The learned counsel for the appellants submitted that the present one was also one such where the chain of circumstantial evidence is not completed so as to indicate only the guilt of the appellants.
1991 S.C.C. (Crl.) 407 (Padala Veera Reddy vs. State of Andra Pradesh and Others) This was also a case wherein the Supreme Court has held that mere suspicion cannot replace proof.
2004 S.C.C. (Crl.) 1893 (Narendra Singh and another vs. State of Madya Pradesh) This was also a case of circumstantial evidence and the Supreme Court held that suspicion cannot take the place of proof and circumstantial evidence, and if two views are possible, the one in favour of the accused should be taken.
17. The learned counsel for the appellants submitted that whichever view is favourable to the accused should be accepted.
18. The learned Additional Public Prosecutor submitted that the prosecution has proved its case beyond any reasonable doubt. PW.18 has clearly spoken of A-1 taking his house on lease. In fact, even in the cross- examination, it has been elicited that A-1's father took back the advance after they had vacated and that it is not for the prosecution to explore the reason why, a father would pay the advance in a situation like this, but when the evidence of the landlord is clear, the Court must accept the same. Therefore, the prosecution had established that A-1, A-2 and the deceased were together as a family before the occurrence.
19. The learned Additional Public Prosecutor submitted that even if one were to eschew the evidence of PW.3, the witness who was in the hospital and who claims to have seen the accused with the deceased and the evidence of PW.10, the auto driver who claims to have last seen the accused with the deceased, because they failed to identify A-1 at the test identification parade, there are enough materials to show the involvement of the accused in the act.
20. The learned Additional Public Prosecutor submitted that PW.7 had spoken about the presence of A-2 and A-1 in the ward where the deceased was admitted. She had also stated that when there was no one present, A-1 would fling the deceased child on the bed but when A-2 was present he would pretend to pat the child.
21. PW.18 had also stated in the cross-examination that the child would shiver with fear whenever she saw A-1. There was nothing in the cross- examination of PW.7 to doubt the presence of PW.7 in the hospital and therefore, the non-production of any evidence to show that she was admitted as inpatient is really not fatal to the prosecution case.
22. The learned Additional Public Prosecutor, thereafter submitted that PW.6 is the nurse who has deposed that on 14.5.2001 a.m., Doctor who came on rounds told PW.9 that the plaster cast should be removed and on the next day both the child and A-2 were not present. She had identified A-2 in the test identification parade. Therefore, the evidence of PW.6 is cogent and credible. Learned Additional Public Prosecutor referred to the evidence of PW.8 another nurse who has spoken about the presence of A-1 with A-2 in the hospital. PW.9 the male nurse attendant, who removed the plaster cast from the deceased had also identified A-1 as the person who was with the deceased and A-2 at the time when he removed plaster cast.
23. The learned Additional Public Prosecutor submitted that more importantly at about 9.30 p.m. on the fateful date of occurrence, PW.11 had seen A-1, A-2 with the child on the side. The evidence of this witness who is an auto driver cannot be rejected.
24. The hiring of cycle has also been spoken to by PW.12.
25. PW.26 is another independent witness who had gone to the Thanjavur Medical College and Hospital with his employer Ananda Raj on 19.5.2001. He is the witness who has attested Ex.P.21, P.22, P.23.
26. The learned Additional Public Prosecutor submitted that investigation in this case is not with regard to the theft of the Ambassador Car but with regard to the homicide of the child and therefore, the non-production of the arrest card is really not relevant.
27. The learned Additional Public Prosecutor pointed to the crucial evidence of PW.27 who was the Inspector of Police of Nadukkaveri Police Station and who had arrested A-1 and A-2 in the Ambassador Car in connection with the Crime No.110/2001.
28. The learned Additional Public Prosecutor submitted that the prosecution had established that, A-1 and A-2 were living together; that A-1 and A-2 were together in the hospital where the deceased was admitted then; the removal of the child without being duly discharged by the hospital; that A-1 and A-2 had taken the child in the cycle shortly before the occurrence, and also the arrest of A-1 and A-2 together in the Ambassador Car. All the circumstances that have been established lead only to the hypothesis of the guilt of the accused. The prosecution's task is complete.
29. We have heard the rival contentions put forward on either side and perused the entire materials available on record and we have carefully considered the same.
30. We will now examine the oral evidence let in by the prosecution. P.W.3: He is a tailor who was admitted as inpatient in the Kumbakonam Government Hospital. According to his evidence, the deceased was admitted in the same ward for injury on her left hand. He had seen A.2, the mother of the deceased whenever she gave medicine to the deceased. On 14.05.2001, he was seating outside the award, he saw A-2, deceased along with another man who is identified as P.W.4 as A-1 and at about 3.30 p.m, he heard a child cry and he saw A-1 and A-2 beating the child. On the next day, when the nurse came to give medicine as usual, there was no one in the bed. The deceased was not there and A-2 was also not there. He saw the photograph of the accused and the deceased and he recognised them. He failed the T.I.P. P.W.4: He is an agricultural coolie. His son was injured when the roof of his house fell down due to the storm. He admitted his son in the hospital, the X-Ray of his son are M.O.2 series. He and his two sons and also his wife were admitted as inpatient in the hospital. At that time, he has seen A-2 with the deceased who had sustained a fracture on her left hand. When it was time to give medicine, on the fateful day it was found that neither A-2 nor the deceased were there.
P.W.6: She is a nurse working in the Kumbakonam Government Hospital and she was in the Ortho ward. On 30.04.2001, at about 11'o clock, the deceased was admitted as an inpatient. She had sustained injuries. To take care of her, A.2, her mother was present. On 14.05.2001, when P.W.6 came on her morning rounds, she gave A-2 some medicine that has to be given to the deceased thrice during the day. At 11.00 a.m in the morning, the doctor came for his rounds and said that the plaster cast could be removed that day and thereafter it would be possible to give the child a bath. On 1'o clock, since her duty was over, P.W.6 went home. The next morning at 7'o clock, when she joined duty, she found that the deceased and A-2, her mother, were absent. She gave information to the doctors and also gave a police intimation. So the unexplained absence of the child and the mother is established by this witness.
P.W.7: She was also an inpatient in the Kumbakonam Government Hospital at the relevant point of time. She was in the same ward, when the deceased had severe fracture on her left leg. According to her evidence, A-2 assisted the deceased. When no one was there, A-1 would throw the deceased; when the mother was there, he would play with the deceased. One day, they removed the plaster cast for the child and thereafter A-2 took the deceased on the same day and the child was no longer in the bed.This witness establishes the presence of A-1 in the hospital at the bed of the deceased and his attitude to her. P.W.8: She is the nursing assistant in the Kumbakonam Government Hospital. On 14.05.2001, she saw A-2 and the child sitting under the tree in front of the ward. Since the deceased had sustained fractures, she had been admitted and plaster cast had been put on her. On 14.05.2001, the plaster cast was removed. It was visiting time, a man about 30 years old was standing near them.This witness has spoken of A-2 and the deceased outside the hospital on the crucial day.
P.W.9: P.W.9 is a male nursing Assistant. He had put the plaster cast on the patient. On 14.05.2001, he was on duty between 7.00 a.m to 7.00 p.m. On the instruction of the doctor, he removed the plaster cast from the deceased. A-2 was present at that time. A man about 30 years old was standing outside. He has been identified by the witness as A-1. On the next day, the child was not there. His evidence also shows tha unexplained absence of the child. P.W.10: He is an Auto Driver. He knows A-1 who was also an auto driver. P.W.10 used to park his auto in the auto stand in front of the Kumbakonam Government Hospital. At that time when the deceased had been admitted, A-1 and A-2 would come to the hospital and seen them there. On 14.05.2001 at about 8.00 p.m, A-1 and A-2 went on Moorthy Road carrying the deceased. He failed the T.I.P. P.W.11: He is also an auto driver. He had also parked his auto in front of the Kumbakonam Government Hospital. He has seen A-1 and A-2. Sometimes A-1 asked him to take care of his cycle while he went to the hospital to see the deceased. On 14.05.2001, he had seen A-1 and A-2 in the hospital. On 14.05.2001, he was standing near the Kumbakonam Electricity Board Office, since there was no petrol in the auto. At that time, A-1 and A-2 were passed him in the cycle. A-1 was driven the cycle and A-2 was sitting behind with the deceased on her lap. This witness has seen the accused with the deceased shortly before the fateful hour.
P.W.12: He is a cycle shop owner in Kumabakonam and he gave his cycles on hire. On 14.05.2001 at about 9.10 p.m when he was in the shop, A-1's father who is a Head Constable asked if there was cycles on hire. P.W.12 informed him that he is going to close the shop. Thereafter, A-1 came there and asked he required a cycle urgently. He gave cycle NO.30 with carrier. Thereafter, he closed the shop after one hour. The next morning at 7'o clock A-1 returned the cycle. When P.W.12 asked him why he did not return the cycle in the night itself, A-1 told him that all he needed was the hiring charges and gave him Rs.10/-. Ex.P.6 is the note book of the cycle shop and Ex.P.7 is the endorsement to show that the cycle was given to A.1 for hire.
P.W.13: He is also an Auto driver. On 14.05.2001, at about 11.00 p.m, he was in the auto stand in Big Street. At that time when Jegannathan was also standing with him. A.1 went in a bicycle. P.W.13 saw A-1 picking up a polythene bag. When he questioned A-1, A-1 told him that he had some important work to do and went by eastwards.
31. It is clear that PW.3 and PW.10 had failed to identify A-1 in the test identification parade. This has been spoken to by PW.16, who was then the Judicial Magistrate of Papanasam and from whom Ex.P.11, the results of the test identification parade, was marked.
32. We shall now see if the prosecution has established its case even if the evidence of PWs.3 and 10 is eschewed.
33. The first link is the evidence of PW.18. PW.18 owns a house in Puliancheri. There is a room vacant in the top. The father of A-1, one head constable had requested him to let this room on rent to A-1 and that he would be joining the police force in one month and a room is required only for one month. Rs.4,000/- was given as advance by A-1's father and A-1, A-2 and the deceased stayed in PW.18's house from 2.4.2001 to 20.4.2001. PW.18 found the deceased with a bandage in her hand and when he enquired A-1 told him that the child fell down from the first floor. This witness had also given evidence regarding A-1's acts of violence viz., beating A-2. In cross-examination, it has been elicited that on the next day A-1's father vacated the house and took back the advance. He has denied the suggestion that A-1 did not treat the child with cruelty. In fact, he has clearly stated in the cross examination that the deceased would shiver with fear when she saw A-1. The evidence of PW.18 is cogent,natural and believable. This establishes the first link of the chain which shows that A-1, A-2 and the deceased lived together at the time of the occurrence and that A-1 treated the deceased with cruelty, which made the child shiver at the mere sight of A-1.
34. The next link is PW.6. PW.6, the nurse has stated that, on 30.4.2001, the deceased was admitted as an inpatient since she had sustained a fracture and this witness has also deposed that, at 11.00 am on 14.1.2001, the date of occurrence, A-2 was informed that the plaster cast could be removed from the child. On the next day, i.e., on 15.5.2001, the child and the mother were missing. Therefore, this witness speaks of A-2 admitting the deceased for treatment. This is the next link.
35. The next witness is PW.15, Doctor, who has admitted the deceased on 28.4.2001 with injuries which are alleged to have been sustained by her when she fell down from the stairs. The injury is a grievous injury. Ex.P.9 is the Accident Register. PW.15, the Doctor had stated in her evidence that the deceased was not discharged from the hospital and even before the treatment was over, the child had been removed. This witness establishes the next link in the chain. The deceased child, a tender 3 year old girl, could not have gone away from the hospital on her own. She was taken by A-2, the mother without being duly discharged.
36. To show the presence of A-1 along with A-2, the prosecution has examined PW.7, who was admitted as an inpatient in the same hospital, in the same ward and at the same time the deceased was also admitted for the fracture. She had spoken of how A-1 would treat the child when no one was present. It was contended on behalf of the appellants whether other persons in the ward would be silent when A-1 was flinging the deceased on the bed and it was also contended that when this witness is unable to state who else was present in the ward at that time, it is not believable that she would remember only the accused and the deceased. The conduct of A-1 was spoken to by PW.7 is something unusual. He was flinging and throwing the child on the bed when A-2 was not present and would appear to treat the child with kindness when A-2 was present. This is unusual behaviour and therefore, PW.7, who was in the same ward, noticed this. This appears quite natural. The presence of PW.7 cannot be doubted since even in the cross-examination, she has clearly stated that she was in the hospital for three months for taking treatment. Therefore, non-production of the admission slip of PW.7 is really not fatal to the prosecution case. This is the next link which shows the presence of A-1 in the hospital with A-2 and the deceased.
37. PW.8 is also a nurse who had also spoken about the child being taken away without being duly discharged. This is one more link.
38. PW.11 is an auto driver who had finished his rounds and was standing near the Kumbakonam E.D. Office since his vehicle had run out of petrol. He had clearly stated that he saw the accused on a cycle. A-1 was driving the cycle and A-2 was sitting having the deceased child on her lap. They passed by him and went away. It has been elicited in the cross-examination, that he knew A-1, he had spoken to him and he also knew the auto stand where A-1 parked his auto. It has been elicited in the cross-examination that A-1 was wearing brown pants and tan colour shirt. Nothing has been elicited in the cross examination to make the Court disbelieve the evidence of PW.11 that at about 9.30 p.m. he saw the accused with the deceased and therefore, he is the next important link to prove that the accused were last seen with the deceased. The fact that there was some rivalry between two Unions is not sufficient to make the Court disbelieve the evidence of this witness.
39. PW.12 is the cycle shop owner. He has stated in his evidence that after 9'o clock, A-1 came in a hurry and borrowed a cycle and that he gave Number 30 cycle and he waited for one hour for A-1 to return the cycle and thereafter, he closed his shop. On 15.5.2001 in the morning after he opened the shop at about 9.10 a.m., he returned the cycle. When A-1 was questioned why the cycle was not returned in the night, A-1 had replied that all that he wanted was hire charges and he gave him Rs.10/-. The note book of the cycle shop has been marked as Ex.P.6 and the fact that A-1 took the cycle has been marked as Ex.P.7. No doubt, it was contended on behalf of the appellant that the cycle has not been recovered. The non-recovery of the cycle is not material when the cycle has been returned to PW.12. In any event, this evidence of PW.12 is useful as a link to reinforce the evidence of PW.11 that he saw the accused with the deceased on a cycle. This is the next link.
40. The final link is the evidence of PW.27 who had confronted that the two accused on 19.5.2001 at 5.00 p.m. came in the Ambassador Car PY-01/P-2235 before their arrest. This witness has spoken to the fact that as soon as A-1 saw the police, A-1 stopped the car and tried to escape and fell in Jambu Kaveri Channel. There is nothing to disbelieve the evidence of this witness that A-1 and A-2 were found together in the Ambassador Car. Therefore, the arrest of both the accused together is another link.
41. The recovery witness, PW.26 also cannot be rejected since he has stated that he went along with his employer Ananda Raj, who has also signed as a witness in the confessional statement and recovery mahazars.
42. Therefore, the prosecution has clearly established every link of the chain of circumstantial evidence. When A-2 had taken the deceased from the hospital without being duly discharged, it is for the accused to prove what happened thereafter. When A-1 had been seen with A-2 and the deceased in the cycle at 9.30 on 14.5.2001, it is for him to prove what happened thereafter. There was wide publicity regarding the child. And PW.17, the father of the child, saw the photograph and claimed to PW.25 that he is the father of the deceased child. The mother, A-2 normally should have done the same. She alone could have taken the child away without being duly discharged. In the absence of any such explanation on the part of the accused and when the young child who had been last seen in the presence of A-1 and A-2 was found dead, the only conclusion that can be drawn is one of guilt of the accused and not of their innocence.
43. In (2000) 2 S.C.C. 197 (Joseph vs. State of Kerala), which was a case of circumstantial evidence, the Supreme Court observed as follows :
"As far as the homicidal fact is concerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant."
The Supreme Court in that case found the fact of the deceased being taken away from the Convent by the appellant as a formidable incriminating circumstance against the appellant. In the case on hand, the deceased child was taken away from the hospital by the appellants. The Supreme Court held in the above case as follows :
"The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 CrPC, the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge."
In the present case, the accused alone could explain what happened to the deceased child after she was taken away from the hospital without being duly discharged. It is apparent that the evidence is not compatible with their plea of innocence.
44. So this is how little Mohanapriya died. It is clear that little Mohanapriya suffered every possible act of violence before she breathed her last. What is heart-rending is that, not content with deciding to killing her, the accused subjected her to dreadful physical abuse.
45. Ex.P.8, the Postmortem Certificate, shows that the deceased was a victim of child abuse and homicidal violence. It shows injuries, which includes broken bones, multiple scratches all over the body, multiple abrasions, burns and broken legs and a broken hip joint. Though the genital organs did not contain semen, PW.14, the Postmortem Doctor had stated that the genital organs were swollen, and that the changes in the genital organs were not natural, and that it would have been caused if some external object has been inserted with a view to inflict cruelty on the child; and that the burns could have been caused by cigarette, with intention to cause cruelty. As regards the head injury, the doctor has stated that it is possible to be inflicted by a violent blow with the hand on the head.
46. In this context, we would like to focus our attention on certain aspects of child abuse. The evidence indicates that the child was treated with cruelty. Even the first injury, which is a broken limb, for which she was admitted in the hospital, was probably a non-accidental injury.
47. There is very little awareness in our country about child abuse.
48. The following extracts from the National Child Abuse Study undertaken by Prayas Institute of Juvenile Justice are relevant :
i) Forms and dynamics of child abuse have undergone major changes in recent decades, adding multifaceted dimensions, complexities and challenges.
The problem of child abuse and the web of its human rights violation embrace some of the most critical aspects of the worst forms of child exploitation and abuse on the international human rights agenda.
ii) Need for a Study on Child Abuse - The National Study on Child Abuse has been taken up primarily to assess the situation of child abuse, in the light of the National Charter for Children and the National and State Commission(s) on the Rights of Child, likely to be enacted by the Parliament soon. So far no authentic data or report on child abuse is available to formulate a national level legislation and a national policy.
Child abuse cases, in the given sense, are generally not reported due to the fact that such an offence does not figure under any law (except the Goa Children's Act), or due to the absence or inadequacy of legal provisions. It may also be on account of several cultural, socio-economic and psychological reasons. It becomes imperative to undertake a national level study on child abuse, since very few studies have been conducted in this extremely critical area. Child abuse, unfortunately, has not been viewed as a separate offence or group of offences, or state of body and mind, causing physical and emotional damage to the child. It is, at best, viewed in the context of child labour, child prostitution and child trafficking, for which legal provisions have been made.
iii) The extent of abuse inflicted on children gets reflected from the crime records data. The total crime against children showed a rising trend from 1999 to 2001, as 4,957 cases were registered in 1999 as against 6,087 cases in 2001. However, in the year 2002, such cases went down to 5,972. The total figure for crime against children for the year 2003 (2,084) is not comparable with the figures of the previous year as the figures of child rape are not included for the year 2003. Data on child rape are not collected on a monthly basis.
49. This study also shows that we must consider the possibility of physical abuse when the child has unexplained burns, pains, bruises, broken bones or black eyes.
50. In the Book, "The Evidence in Child Abuse and Neglect Cases", John E.B. Myers has observed as follows :
"A strong indicator of non-accidental injury is an explanation that is implausible and inconsistent with common sense and medical judgment".
In the present case, when the deceased was admitted in the hospital, she had a broken limb and it was explained as a fall from the stairs.
"Head injury is one of the most deadly and dangerous forms of non- accidental injury".
"Expert testimony regarding the child's injuries and the cause of death are relevant".
"Cigarette burns are common indicators of child abuse."
Levitt, Smith and Alexander write :
"Abusive head trauma is the most common cause of death from child abuse and is the leading cause in all trauma related death among children. Inflicted head injury is particularly common among young children and infants".
"The trier of facts may consider the nature, the type and extent of injuries, repeated blows, use of weapon, the defendant's prior abuse of the child".
Keeping this in mind, we are of the opinion that the evidence produced by the prosecution indicates only the guilt of the accused and excludes their innocence.The deceased died of homicidal violence and this is clear from the above literature, which focusses on child abuse.
51. The following extracts from (2005) 3 S.C.C. 114 (State of U.P. vs. Satish) are relevant :
"In Padala Veera Reddy v. State of A.P., 1989 Supp (2) S.C.C. 706, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
"Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
Tested on the touchstone of law relating to conviction based solely on circumstantial evidence as seen from the above extracts, we have no doubt in our mind that the accused are guilty of homicidal violence.
52. The learned counsel for both the appellants submitted, without prejudice to the submissions with regard to the innocence of the appellants, that the award of fine of Rs.1 lakh and 12 years' rigorous imprisonment for failure to pay the same on the first appellant amounts almost to awarding two sentences for life. The first appellant had no job when he was tried for this offence and it is almost impossible for him to pay the sum of Rs.1 lakh. As regards the second appellant, the learned counsel submitted that she is also in the same predicament. She cannot now hope to have any support from her husband and there is no possibility for her to pay the fine of Rs.5,000/- which was imposed on her.
53. Considering the above circumstances and since we have found the appellants guilty of the offences punishable under Section 302 read with Section 34 I.P.C. and since we are not inclined to set aside the sentence of award of rigorous imprisonment for life, the judgment of the Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam dated 28.2.2003 made in Sessions Case No.146 of 2002 with regard to imposition of fine of a sum of Rs.1 lakh on the first appellant and a fine of Rs.5,000/- on the second appellant alone is set aside. In other respects, the sentence of the trial court is confirmed.
54. Mr. V.M. Neesh, the learned counsel appointed as Amicus Curiae, who represented the second accused, is entitled to get the counsel's fee from the Legal Services Authority.
55. Before parting with the case, we would like to point out that the investigation in this case has been done with great effort, to see that every link in the chain of circumstantial evidence is established beyond reasonable doubt. The Accident Register, Ex.P.9 shows that the deceased child has suffered an injury, which was explained as a result of a fall from the stairs. In view of the increase in child abuse and the knowledge that we have gained from the national study on child abuse, it may be worthwhile for the investigating officers and the medical officers to take greater care in cases where injuries found on a child indicate that the reason given for the same might be false. Then, it might be possible to save children from repeated acts of abuse. The higher police officials and superior medical officers in Government Hospitals may well take note of this aspect in cases involving child victims.
To
1. The Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam.
2. The Public Prosecutor, Madurai Bench of the Madras High Court.
3. The Superintendent of Police, Central Prison,
4. The Inspector of Police, Kumbakonam (East) Police Station.
5. The Director General of Police,