Madras High Court
Ayyanar vs State Rep. By on 20 June, 2016
Author: V.Bharathidasan
Bench: V.Bharathidasan
THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20..06..2016 CORAM THE HONOURABLE MR . JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN Criminal Appeal No.84 of 2015 1.Ayyanar 2.Chandra ... Appellants -Versus- State Rep. by The Inspector of Police, Neyveli Town Police Station, Cuddalore District. [Crime No.510 of 2011] ... Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C. challenging the conviction and sentence imposed on the appellants by the learned Sessions Judge, Mahila Court, Cuddalore, in S.C.No.89 of 2012 dated 15.03.2013. For Appellant : Mr.R.John Sathyan For Respondent : Mr.M.Maharaja, APP JUDGEMENT
(Judgement of the Court was delivered by S.NAGAMUTHU, J.) The appellants are Accused Nos.1 and 2 in S.C.No.89 of 2012 on the file of the learned Sessions Judge, Mahila Court, Cuddallore, Cuddalore District. A1 stood charged for offences under Section 376 r/w 511, 302 and 201 of IPC. A2 stood charged for offence under Section 201 r/w 302 of IPC. By judgment dated 15.03.2013, the trial court convicted A1 for offences under Sections 302 and 201 of IPC and convicted A2 for offence under Section 201 r/w 302 of IPC. Accordingly, the trial court sentenced A1 to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for a further period of three years for offence under Section 302 of IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a further period of 2 years for offence under Section 201 of IPC. A2 has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a further period of two years for offence under Section 201 r/w 302 of IPC. The trial court acquitted A1 from the charge under Section 376 r/w 511 of IPC. Challenging the above said conviction and sentences, A1 and A2 have come up with this criminal appeal.
2. The case of the prosecution in brief is as follows:- The deceased in this case was one Miss.Kanitha. She was hardly 10 years old at the time of occurrence. P.Ws.1 and 2 are the father and mother respectively of the deceased child. P.Ws.1 and 2 have three children of whom the first child is a male by name Velan. The deceased was the second child. The third child is a female by name Initha. All the three children were studying in a private school known as Thiripurani Matriculation School at Abathanapuram. They were all residing at Vanathirayapuram Village. Their son Velan, who was doing X Standard, used to go to the school every day in the bicycle in which he used to take his youngest sister to the school and return back in the evening wit her in the cycle. It was the usual practice of P.W.1 to take the deceased in his motor cycle and to drop her in the morning at her school. In the evening, P.W.1's brother by name Mr.Vivekananthan [P.W.4] used to take the deceased also from the school to the house of P.W.1 along with his own children who were also studying in the same school. For any reason, if P.W.4 could not go to the school on time, the deceased Kanitha used to return home on walk.
3. On 17.08.2011, as usual, P.W.1 had dropped the deceased at the school in the morning. She was studying V Standard in the said private school. The school-hour was over by 04.00 p.m. But, P.W.4 could not go to the school on time to pick up the deceased along with his children. It is alleged that the deceased, therefore, was on walk towards her house.
4. A1, who was, at that point of time, coming in that way in his bicycle, on seeing the deceased stopped his cycle and inquired her as to where was she studying? and where was she proceeding? The deceased told him that she was studying V standard in a school at Abathanapuram Village and she was returning to her house at Vanathirayapuram village. A1 offered to carry her in his cycle and to drop her at her house. Believing the words of A1, she accompanied him in his cycle. When they were proceeding towards Vanathirayapuram, P.W.4, who came from the opposite direction, was rushing towards the school as it was already too late to pick up his children. At that time, P.W.4 found the child sitting in the carrier of the cycle rode by a man. The deceased told P.W.4 in a loud voice to go and pick up his children early from the school. The deceased, waving her hands, went along with the man in the cycle. P.W.4 went to the school and picked up his children and returned home at Vanathirayapuram village.
5. After some time, P.W.2, the mother of the deceased inquired P.W.4 as to what had happened to the deceased as she had not returned home. P.W.4 told that he did not take her from the school as even before she could reach the school, the deceased was returning in a cycle which was ridden by a man aged about 25 years [later on identified as A1]. Then, P.W.2 informed P.W.1 about the same. P.W.1, 2 and 4 went in search of the deceased. They did not find the child anywhere. Neither the whereabouts of the accused was known. Therefore, P.W.1 went to Neyveli Town Police Station at 09.30 a.m. on 18.08.2011 and made a complaint (Ex.P1). P.W.24, the then Inspector of Police, on receipt of the said complaint, registered a case in Crime No.510 of 2011 for Girl Missing. Ex.P17 is the FIR. Then, he forwarded both the complaint (Ex.P.1) and the FIR (Ex.P.17) to the court which were received by the jurisdictional Magistrate at 10.30 a.m. on 23.08.2011. Taking up the case for investigation, P.W.25 went to Vanathirayapuram village and examined many witnesses. All of them went in search of the child. The Headmaster and the Teacher of the school confirmed that she left the school at 4.00 p.m. All the efforts taken by P.W.25 to trace out the child proved futile. At last, on 28.08.2011, around 08.45 a.m., the dead body of a female child was found in a very old well situated in the land belonging to one Mrs.Saroja (P.W.11) in Thenkuthu village. The well is situated behind the house of P.W.11. P.W.9 is her son. They smelt some bad odour emanating from the well and when they went to the well, they found the dead body. They immediately informed the Village Administrative Officer about the same. P.W.7, the Village Administrative Officer, along with his Assistant (P.W.8), visited the said Well, found the dead body inside the well and informed the same to the police. P.W.25, on receiving the intimation, rushed to the scene of occurrence, examined a few witnesses and thereafter, prepared an observation mahazar and a rough sketch in the presence of P.W.12 and another witness. P.W.25 fished out the dead body from the well with the help of P.Ws.14 and 15. But, the headless trunk alone could be taken out of the well and the head was missing. Then, the water in the well was completely drained and from the mud, the head of the deceased was also taken out. Then, P.W.25 conducted inquest on the body of the deceased. He altered the case, thereafter, into one under Section 174(3) of Cr.P.C.
6. In the mean time, P.W.10, Dr.Ezhil, had already arrived at the scene of occurrence at the request of P.W.25. He conducted autopsy on the body of the deceased at 12.45 p.m. on 28.08.2011. He found the following:-
"Decomposed body of a female child in white uniform and blue socks present near a well with plenty of maggots. Skull absent. Hyoid bone, neck and thyroid cartilage absent. C5, C6, C7 present. Other cervical vertebrae absent. Pelvic bone exposed. All pelvic soft tissue decomposed. Uterus as could not be identified. Fingers absent in both hands. Both clavicles and ribs separated from sternum. Bones of both legs exposed. Lungs, heart, liver, kidney, stomach and intestines putrefied."
He preserved the putrefied liver, kidney, stomach and intestines for chemical analysis. He also preserved sternum for diatom test, and femur for DNA examination. Ex.P.10 is the postmortem certificate.
7. After the skull was recovered from the mud, it was taken to the Government Hospital at Panruti. P.W.18, the doctor, conducted autopsy on the head also at 01.30 p.m. on 30.08.2011. During autopsy he noticed the following:
"Only bony skull present. Lower jaw absent 6 / 6 teeth present. 5, 4, 3, 2, 1 / 1, 2, 3, 4, 5 teeth absent. Brain mater, membranes absent. One plaited hair bunch black 30 cms long brought along with the skull. He preserved the skull also for analysis. Finally, he opined that since the body was highly decomposed, the cause of death could not be definitely stated. As requested by the investigating officer, he forwarded the preserved skull for the purpose of superimposition test."
8. After the post-mortem was over, P.W.25, recovered the personal belongings of the deceased from the well. On 31.08.2011, on Panruti - Vadalur Main Road, P.W.25 arrested A1 in the presence of P.W.1 and another witness. On such arrest, he made a voluntary confession in which he disclosed the place where he had hidden a bicycle and a cell phone. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced the bicycle (M.O.10) and cellphone (M.O.11) and a SIM card (M.O.9). On the same day at 01.00 p.m., P.W.25, arrested A2 in the presence of the same witnesses. On such arrest, she also made a voluntary confession in which she disclosed the place where he had hidden a pair of shoes and a jatti. In pursuance of the same, she took the police and the witnesses to the place of hide out and produced a pair of shoes [M.O.12] and a brown colour jatti [M.O.13]. P.W.24 recovered the same under a mahazar. Then, on returning to the police station, he forwarded both A1 and A2 to the court for judicial remand. He forwarded the material objects also to the court. On the request made by P.W.25, some of the material objects were sent for chemical analysis. Then, he altered the case into one under Sections 376 r/w 511, 302 and 201 of IPC. At his request, test identification parade was conducted for A1 by the learned Judicial Magistrate No.I, Panruti. In the said test identification parade, P.Ws.4 and 20 identified A1 correctly. On the request made by P.W.25, the skull recovered from the well was also sent for superimposition to find out the identity. The file photograph of the deceased was sent for the said purpose. P.W17 conducted superimposition test and found that the skull was that of the deceased. On completing the investigation, he laid charge sheet against both the accused.
9. Based on the above materials, the trial court framed as many as four charges as detailed in the first paragraph of this judgement. Both A1 and A2 denied the same. In order to prove the case, on the side of the prosecution, as many as 25 witnesses were examined, 24 documents and 13 material objects were marked.
10. Out of the said witness, P.Ws.1 and 2 are the parents of the deceased. They have stated that the deceased had gone to the school in the morning on 17.08.2011, but, in the evening she did not return. They have further stated that P.W.4 told that the child was taken by a man, aged about 25 years, in a bicycle. P.W.1 has also spoken about the complaint made by him and the search made for the child. He has further stated that the body of the child was later on found floating in the well belonging to P.W.11 on 28.08.2011. P.W.3 has spoken about the test identification parade conducted by him wherein P.W.4 and P.W.20 identified A1 as the one who lastly took the deceased in the bicycle. P.W.4 is the brother of P.W.1. He has stated that on 17.08.2011, when he was rushing to the school in the evening to pick up his children and the deceased from the school, he found the deceased going in a bicycle along with a man aged about 25 years. The deceased at that time told him in a loud voice to go and pick up his children and also waved her hands. P.W.4 has identified the accused as the one who was so taking the child in the bicycle. P.W.5 has spoken about the preparation of the observation mahazar and the rough sketch by the police in the village where the dead body was found. P.W.6, the class teacher of the deceased has stated that on 17.08.2011, the deceased attended the classes from the morning and by 04.00 p.m. after the school hour was over, she left the school. P.Ws.7 and 8 who are Village Administrative Officer and Village Assistant respectively have stated that P.W.9 informed that a dead boy of a child was found floating on 28.08.2011 in the well belonging to P.W.11. They have further stated that they informed PW.25 about the same. P.W.9 is the son of P.W.11. Both of them have stated that on 28.08.2011, they smelt some bad odour emanating from the well and when they went to the well, they found the dead body of a child floating in a highly decomposed condition. Then, P.W.9 informed to P.W.7 about the same. P.W.10 a neighbour of P.W.11 has also stated that he found the dead body of a child in the well belonging to P.W.1. P.W.12 has spoken about the preparation of the observation mahazar and the rough sketch near the well and the recovery of material objects, that is, the personal belongings of the deceased, by the police from near the place where the dead body was found. P.W.13 yet another neighbour has also stated that he found the dead body of the child floating in the well. P.W.14 and P.W.15 have stated that when the dead body was fished out of the well, it was headless and therefore , with the help of Fire REscue Services and the local villagers, the water was completely drained out and later on, the head of the child was taken out from the well in a highly decomposed condition. They have further stated that a white colour ribbon was found tied to the hairs of the deceased.
11. P.W.16 is an important witnesses for the prosecution. She hails from Thenkuthu Village. She was given in marriage to one Mr.Kumar of Melakuppam Village. Her mother's house is situated by the side of the house of these accused. According to her, for the purpose of participating in a village temple consecration, he had gone to Thenkuthu Village and she was staying there at her mother's house. She has further stated that on 17.08.2011 at about 04.30 pm., when she was sitting in front of her mother's house feeding her child, A1 came in a bicycle. She found the deceased Kanitha siting in the carrier of the cycle with her school wire bag and she was in her uniform. The deceased was already known to her as she knew P.Ws.1 and 2 very well. She has further stated that on the next day, she had gone to her village namely Melakuppam. Later on, she came to know that the body of a child was found floating in a highly decomposed condition in the well belonging to P.W.11. P.W.17 is the Forensic Science Expert who conducted superimposition test. He opined that the file photographs of the deceased tallied with the skull recovered from the well. P.W.18 has spoken about the autopsy conducted on the trunk and on the head later. He has further stated that the cause of death could not definitely be ascertained as the dead body was in a highly decomposed condition. P.W.10, the expert from the Forensic Sciences Laboratory has stated that as requested by P.W.25, he visited the place of occurrence when the inquest was conducted and he assisted P.W.25 to recover the material objects.
12. P.W.20 is yet another important witness for the prosecution. He has stated that on 17.08.2011, around 04.30 p.m., when he was proceeding to Vadalur, he found a man taking the deceased in his bicycle. He has identified him as A1. He has further stated that he identified A1 in the test identification parade also. P.W.21 has spoken about the arrest of both A1 and A2 and the consequential recoveries made on their respective disclosure statement. P.W.22 has stated that the bicycle belonging to the accused was pledged to him and P.W.23 has stated that the accused had given a cell phone to him for Rs.400/-. P.W.24, the Station Fire Officer, has stated about the retrieval of the head from the well. P.W.25 has spoken about the entire investigation done by him in the case and the filing of charge sheet against both the accused.
13. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C. he denied the same as false. However, he did not choose to examine any witness nor did he mark any document on his side. His defence was a total denial.
14. Having considered all the above, the trial court convicted the appellant/accused as detailed in the first paragraph of this judgement. Challenging the above said conviction and sentences, the sole accused is now before this Court with the present criminal appeal.
15. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
16. This is a case based on circumstantial evidence. At the outset, we should say that in a case of this nature, the prosecution should prove the circumstances projected by it beyond all reasonable doubts and all such proved circumstances should form a complete chain unerringly pointing to the guilt of the accused and that there should not be any other hypothesis which should be inconsistent with the guilt of the accused. Keeping this broad principles in mind, let us now go into the circumstances projected by the prosecution. There is no denial of the fact that the deceased was studying at Thiripurani Matriculation School in Abathanapuram. On 17.08.2011, she was taken to the school by P.W.1 in his motorcycle and was dropped. Thereafter, she attended the classes from the morning to evening. This has been spoken by P.W.6, her class teacher and after school-hour was over, at 04.00 p.m. she left the school.
17. P.W.4 and P.W.20 had seen A1 taking the deceased in his cycle. On seeing P.W.4, the deceased told him in loud voice to rush to the school and take back his children early from the school and she waved her hands. Believing innocently that the deceased was going to her house in the cycle taking lift from the accused, P.W.4 did not have any doubt in his mind inasmuch, it was quite normal for elders in the village situation to help the school going children to carry them in their cycle or motorcycle and to leave them in the house or near their house in the village. Therefore, P.W.4 rushed to the school to take his children. After some distance, P.W.20 had seen the accused taking the deceased in the cycle. Thus, these two witnesses had seen the accused around 04.30 p.m. taking the deceased in his cycle. The accused belongs to Thenkuthu Village. He was not already known to P.W.4 and P.W.20. But, when they were examined by the police they had given the physical features for the man who took the deceased in the bicycle. In the test identification parade at the earliest opportunity , they had correctly identified A1 as the man who took the deceased in the bicycle. Though these two witnesses have been extensively cross examined by the accused, we find no material on record even to raise a slightest doubt in respect of their veracity. They are independent witnesses who had no axe to grind against the accused at all. In respect of the conduct of test identification parade also, the learned counsel for the appellants is not in a position to point out anything erroneous or any other shortcomings which would create a doubt in the case of the prosecution. Thus, from the evidence of these two witnesses, the prosecution has clearly established that around 04.30 p.m. on 17.08.2011, the deceased was taken by A1 in his bicycle. They were under the impression that the deceased was going to her house with the help of A1. That was the reason why, they did not have any doubt about the same.
18. A1 had, thereafter, taken the deceased to Thenkuthu Village, for attending a temple consecration. P.W.16, who had visited her mother's house at Thenkuthu village, was sitting just in front of the house around 04.30 p.m. A1 is her neighbour. She knew the deceased and her family also. P.W.16 has stated that when she was so sitting in front of the house, she found A1 taking the deceased in his cycle passing through her mother's house. At that time, the deceased was in her school uniform and her school bag was also on her shoulders. This witness is an independent witness. During cross examination, she has been asked as to whether on 17.08.2011 in the evening the parents of the deceased had inquired her. For this question, she had answered that they did not come in search of the deceased and therefore, she had no occasion to tell the same to them. This explanation is quite natural. It is not the case of P.Ws.1 and 2 that they went in search of the child to Mettukuppam Village. There is no reason for them to go to that village in search of the deceased child also. They were searching for the child in their village and in other places. On 18.08.2011, P.W.16 had gone to her matrimonial home. Only after having come to know that the dead body of the child was found floating in the well, she informed about the facts to the relatives of the deceased and the police. The delay in disclosing the said fact has been duly explained. Since P.W.16 was not aware of the fact that the deceased child was kidnapped and that she was killed, she had no occasion to inform about the above vital fact to anybody. Only after having come to know that the deceased had been killed she informed the same to the parents of the deceased. Thus, from the evidence of P.W.16 after 04.30 p.m. on 17.08.2011, the deceased was still with A1 and he was taking her in his cycle to Thenkuthu Village.
19. The whereabouts of the child was not known. The case was registered 18.08.2011 at 09.30 a.m. Even thereafter, the whereabouts of the child was not known. While so, on 18.08.2011, P.W.11, the mother of P.W.9, smelt some bad odour emanating from the well situated behind her house. When she went to the well, she found the dead body of the child floating in the well in a highly decomposed condition. She immediately informed P.W.9 and P.W.9, in turn, informed the same to the Village Administrative Officer. Thus, from this circumstance, the prosecution has proved that hte deceased was lastly seen alive at 04.30 p.m. on 17.08.2011 by P.W.4 and P.W.20 in the company of A1 and and that the child was found dead by P.W.11 around 08.00 a.m. on 28.08.2011. Thus, the prosecution has proved that the deceased had died some time between 04.30 p.m. on 17.08.2011 and 08.00 a.m. 28.08.2011.
20. From the personal belongings of the deceased which were floating in the water in the well and from the uniform worn by the deceased, the dead body was identified by the parents of the deceased. Since the dead body was headless, the water in the well was completely drained and the head was recovered from the mud. The head was also in a highly decomposed condition. But, hairs were found and there was a white ribbon belonged to the deceased tied to the hairs. Apart from that , the head was also identified by the parents. To substantiate that the dead body was that of the deceased, superimposition test was conducted by P.W.17 and he opined that the skull which was recovered from the well tallied with the photograph of the deceased. From this evidence , the prosecution has proved that the dead body which was found in the well in decomposed condition was that of the deceased with a white colour ribbon.
21. The learned counsel for the appellants would submit that these two circumstances would not go to prove clinchingly that the death of the deceased was a homicide. Relying on the evidence of P.W.18-the doctor, who conducted autopsy, the learned counsel for the appellants would submit that the death would have been even on account of accidental fall. He would further submit that in the absence of proof of death due to homicidal violence and without ruling out the possibility of accidental fall into the well and death due to drowning, conviction of A1 under Section 302 of IPC is not sustainable. Though attractive, this argument does not persuade us at all. As we have already concluded, the deceased, who came out of the school at 04.00 p.m. on 17.08.2011 was taken by A1 in his cycle. P.Ws.4 and 20 had seen A1 taking the deceased child. They were under the honest impression that A1 was taking the child to her village. But, A1 had no business to take her to Thenkuthu village which is a different village. P.W.16 had seen A1 taking the deceased child. P.W.16 knew not only A1, but the deceased as well. She has stated that at that time, the deceased was in her school uniform and with the school bag on her shoulders. The well wherefrom the dead body was fished out was somewhere behind the house of P.W.11. A1 has got no explanation to offer as to why he took the deceased child to Thenkuthu village instead of taking her to her village and what had happened to her after reaching Thenkuthu village. Has A1 got any explanation to offer in this regard, the trial court would have examined such explanation and if such explanation was acceptable then, the court might have been in a position to hold that this circumstance about which we have discussed hereinabove would not conclusively go to prove the guilt of A1. In the absence of any such explanation and in the light of the fact that he had taken a false plea that he did not take the child with him and going by the natural human conduct as provided in Section 114 of the Evidence Act, we have to presume that A1 had either killed the deceased and threw the dead body into the well or he had threw her alive into the well and she died due to drowning. It is immaterial whether the death was due to drowning or due to any other violence, caused on her. The argument of the learned counsel that the death of the deceased child would have been due to accidental fall is not even probable. After the school hour was over, the deceased had nothing to do in Thenkuthu village. It is not as though she had any acquaintance in the said village. There was also no need for her to go behind the house of P.W.11 where the well is situated so as to fall accidentally. It cannot even be imagined that the deceased would have committed suicide by jumping into the well. Then, the only irresistible conclusion which could be arrived at from these circumstances is that it was A1, who either killed the deceased by any mechanical violence and threw the dead body into the well or threw her alive into the well and the deceased would have died as a result of drowning. Except these two, there is no other irresistible conclusion which is possible.
22. Next comes the recovery of material object. In our considered view, the recovery of cell phone from A1 would not in any manner help the case of the prosecution prosecution. Thus, this piece of evidence is not much useful for the prosecution. Though the prosecution has projected that the accused made an attempt to rape the deceased and then killed her, the trial court has acquitted A1 from the charge under Section 376 r/w 511 of IPC for want of evidence. The trial court was right in doing so. Further, the trial court, was absolutely correct in carefully analysing the entire circumstances and coming to the right conclusion that A1 is liable for punishment for the offences under Section 302 of IPC for murder and under Section 201 of IPC for having caused disappearance of evidence of murder.
23. Now, turning to the case as against A2, except the evidence that M.Os.12 and 13 were recovered on the alleged disclosure statement made by her, there is no other evidence. But, the charge against her is that she assisted A1 in causing disappearance of the evidence of murder. We find it difficult to believe the above evidence against A2 that M.Os.12 and 13 were recovered from her possession. Assuming that these two material objects were recovered from A1 that by itself would not go to prove the charge under Section 201 r/w 302 of IPC as against her clinchingly. There is absolutely no evidence that A2 knew that A1 had killed the deceased child. We, therefore, so far as A2 is concerned, hold that the prosecution has failed to prove the charge against her. Thus, A2 is entitled for acquittal.
24. Now, turning to the quantum of punishment imposed on A1, the trial court itself has imposed only a proportionate punishment which also does not require any interference at the hands of this court.
25. In the result, this criminal appeal is partly allowed. The conviction and sentences imposed on the 1st Appellant/A1-Ayyanar for offences under Sections 302 and 201 of IPC are hereby confirmed.
26. The conviction and sentence imposed on the 2nd Appellant/A2-Chandra is set aside and she is acquitted of the charge. Fine amount already paid, if any, shall be refunded to the 2nd appellant. Bail Bond executed by the 2nd appellant shall stand terminated.
Index : yes. [S.N.J.,.] [V.B.D.J,.]
Internet : yes. 20..06..2016
kmk
To
1.The Sessions Judge,Mahila Court,Cuddalore, Cuddalore District.
2.The Inspector of Police, Neyveli Town P.S., Cuddalore District.
3.The Public Prosecutor, High Court, Chennai.
S.NAGAMUTHU. J,.
and
V.BHARATHIDASAN.J,.
svki / kmk
Crl.A.No.84 of 2015
20..06..2016
*****