Selvam vs The State

M. Chockalingam, J.—This judgment shall govern these three appeals, namely Crl.A.(MD). No. 128 of 2009 by A6, Crl.A.(MD). No. 131

of 2009 by A4 and Crl.A.(MD). No. 147 of 2009 by A1 to A3. All these appellants along with one accused who is ranked as A5 stood charged

and tried by the learned Additional District and Sessions Court (F.T.C.), Periyakulam in S.C. No. 17 of 2007 for the following charges;

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Accused Sections

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A1 302, 315 and 201 IPC

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A2 315 and 201 IPC

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A3 315 and 201 IPC

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A4 315 and 201 IPC

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A5 201 IPC

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A6 302 r/w 109 IPC

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On trial, A1 was convicted under Sections 302 and 201 IPC and awarded life imprisonment along with a fine of Rs. 5,000/-, with a default

sentence of six months simple imprisonment for the offence u/s 302 IPC and seven years rigorous imprisonment along with fine of Rs. 2,000/-, with

a default sentence of three months simple imprisonment; A2 to A4 were convicted under Sections 315 and 201 IPC and awarded 10 years

rigorous imprisonment along with a fine of Rs. 3,000/- each, with a default sentence of four months simple imprisonment for the offence u/s 315

IPC and seven years rigorous imprisonment along with fine of Rs. 2,000/- each, with default sentence of three months simple imprisonment for the

offence u/s 201 IPC; A5 was convicted for the offence u/s 201 IPC and awarded seven years rigorous imprisonment along with a fine of Rs.

2,000/-, with a default sentence of three months simple imprisonment; A6 was convicted for the offence u/s 302 r/w 109 IPC and awarded life

imprisonment along with fine of Rs. 5,000/-, with a default sentence of six months simple imprisonment. Hence the appeals are at the instance of

A1 to A4 and A6.

The short facts necessary for the disposal of these appeals can be stated as follows:

(i) A1 is the daughter of A2 and A3. A4 is a close relative of A1. The first accused developed illicit intimacy with A6, who was already married

and had children. Pursuant to the illicit intimacy, she became pregnant. When it came to the knowledge of A6, he was pressurising her to have an

abortion. Apart from that, there was a Panchayat convened on 14.06.2005 in which it was decided that A6 should pay Rs. 10,000/- to A1 and

she should not proceed against him thereafter and it was also decided if a child was born alive, it must be killed.

ii) On 18.06.2005 a child was born in the clinic of P.W.2 and the child was alive. P.W.2 has deposed that the child was born alive and it was

handed over to A1 at the morning hours on 17.06.2005. After getting the child, A1 to A3 went to the hut of A4 situated near to the clinic, where

A1 pressed the chest of the child and caused the death. This was known to A4 also. The dead body of the child was handed over to A4, who in

turn handed over the same to A5. A5 took the dead body of the child in a fertilizer bag to the burial ground. When P.W.1, the Village

Administrative Officer, Allinagaram Village, Theni came along with his menial found A5 with fertilizer bag in her hand near the burial ground and

entertaining suspension he questioned her. Then A5 in turn replied that the dead body of the child was handed over to her by the accused persons

in order to bury the same. Immediately P.W.1 took A5 to the police station and gave Ex.P1, complaint.

iii) On the strength of Ex.P1, complaint, P.W.12, the Sub Inspector of Police of the respondent station registered a case in Cr. No. 225 of 2005

under Sections 315 and 320 IPC. The printed FIR Ex.10 along with Ex.P1, the complaint was despatched to the Court concerned and to the

higher officials.

iv) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an

inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P5 and a rough sketch Ex.P15. The investigator conducted

inquest on the dead body of the child in the presence of the witnesses and panchayatdars and prepared an inquest report, which was marked as

Ex.P.16.

v) Following the same, the dead body of the child was sent to the Government Hospital, for the purpose of autopsy. On receipt of the requisition

made by the investigator Ex.P11, the Doctor, P.W.13, attached to Government Theni Medical College, conducted autopsy on the dead body of

the child and issued Ex.P.12, the post-mortem certificate, and opined that the child died due to the injuries sustained on the Chest and also on the

brain.

vi) Pending investigation, on being identified, P.W.14 arrested A1 to A5 and they were also sent for judicial remand. P.W.17, arrested A6 and at

the time of arrest A6 came forward to give a confessional statement voluntarily in the presence of witnesses, and the admissible part of the

confessional statement of A6 was marked as Ex.P.6. Pursuant to which, Ex.P8 document was produced by him and the same was recovered

under a cover of mahazar Ex.P.17.

vii) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions and

necessary charges were framed.

viii) In order to substantiate the charges, at the time of trial, the prosecution examined 17 witnesses and relied on 24 exhibits and 3 material

objects. On completion of the evidence on the side of the prosecution, the accused/appellants were questioned u/s 313 Code of Criminal

Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. Neither any witness

was examined nor any document was marked on the side of the defence.

ix) After hearing the arguments of the learned Counsel and looking into the materials available, the trial court took the view that the prosecution has

proved the case beyond reasonable doubt and hence, found the accused guilty and awarded the punishment as referred to above. Under these

circumstances, these criminal appeals have arisen at the instance of A1 to A4 and A6/appellants. A5 has not preferred any appeal challenging the

judgment of the trial Court.

Advancing the arguments on behalf of the appellants, the learned Counsel would submit that in the instant case the prosecution had no direct

evidence to offer and it has got only circumstantial evidence. P.W.1 is the only witness examined by the prosecution to speak about the

circumstances relied on by the prosecution. According to P.W.1, when he was coming across the burial ground along with his menial, he found A5

having a fertilizer bag in her hand and entertaining suspicion, he asked her and she gave a confessional statement voluntarily and he immediately

took her to the police station and gave Ex.P1 report. The Sub Inspector of Police, P.W.12 on the strength of the report Ex.P1, registered a case in

Cr. No. 225 of 2005 for the offence under Sections 315 and 302 IPC.

The learned Counsel would further add that in the instant case P.W.1 did not record any statement from A5, but immediately after the reply

given by A5 he took her to the police station and gave Ex.P1 report. A perusal of Ex.P1 report and also the evidence given by P.W.1 before the

Court would clearly indicate that his evidence has got to be rejected.

The learned Counsel for the appellants urged by placing reliance on the settled principle of law that the extra judicial confession made by one

accused against the other accused, is a weak piece of evidence. In the instant case such statement remained unacceptable and hence the evidence

of P.W.1 should be rejected.

The learned Counsel for the appellants took the Court to Ex.P1 wherein it is stated that A5 informed P.W.1 that the dead body of the child was

handed over to A5 by A4. On the contrary when P.W.1 gave evidence before the Court, he has stated that the dead body of the Child was

handed over to A5 by A1 while a few persons were by her side and thus, this material fact is found to be discrepant both in the Ex.P1 report and

also the evidence of P.W.1 before the Court and hence, the evidence of P.W.1 should have been rejected.

In the instant case, it is true that even in the evidence of P.W.1, he did not mention the names of any other accused except A1, as if they have

been on the side of A1, and apart from that, in so far as A4 is concerned, there is no specific evidence to indicate that it was he who handed over

the dead body of the child to A5. It was the case that A5 was taken to police station and a case was registered and thus, from the evidence

available, the only person to be found guilty is A5 because she has made all attempts to screen the evidence. In respect of the other appellants as

to the murder and as to the handing over the dead body of the child to A5, there is no evidence at all. Under such circumstances, the appellants

should not have been found guilty either u/s 315 or 302 or 201 of IPC for screening the evidence and hence they are entitled for acquittal.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions.

It is not in controversy that pursuant to the registration of the case in Cr. No. 225 of 2005 by the respondent police, the Inspector of the police

of the circle, took up the investigation and after preparation of the inquest report, the dead body of the child was subjected to postmortem by

P.W.13, the postmortem doctor, who has given a categorical opinion that the child died out of the injuries sustained on the ribs and also on the

brain. Thus, the prosecution was successful enough in proving the fact that the child died due to homicidal violence.

In order to substantiate the charges levelled against the appellants, the prosecution has no direct evidence to offer and it relied upon the

evidence of P.W.1, the Village Administrative Officer. It is needless to say that when a confessional statement was given by an accused against the

other accused, in order to rely on that the Court should look into other supporting evidence. In the instant case, even the evidence of P.W.1 was

contrary to the report given by him to the police. On the strength of Ex.P1 report, a case came to be registered and a perusal of Ex.P1 would

indicate that when A5 was enquired by P.W.1, the Village Administrative Officer, A5 has replied that the dead body of the child was handed over

by A4 at the coconut shop. When P.W.1 was examined in Court he has categorically stated that A5 has informed him that the dead body of the

child was handed over by A1 and a few others and this vital and major discrepancy is noticed as to who actually handed over the child to A5

which was brought by her. Thus, what are all available in the evidence adduced by P.W.1 was only to the extent that the dead body was found in

the hands of A5 and she also informed that the dead body was given to her to screen the evidence and to that extent A5 is found liable. In so far as

the other part of the incident of murder and handing over the child, the prosecution has no evidence to offer before the trial Court. Even the

evidence adduced would not satisfy the legal requirements to prove the charges levelled against the appellants. Under such circumstances, though

the prosecution was able to prove that the child died out of homicidal violence and A5 has got the custody of the dead body of the child and she

was actually about to screen the evidence and except this part, the prosecution did not prove any one of the charges levelled against the appellants.

Under such circumstances, the judgment of the trial Court is set aside in respect of the appellants/A1 to A4 and A6. Therefore, the appellants are

acquitted of all the charges. The fine amount if any paid by the appellants/A1 to A4 and A6 shall be refunded and the bail bonds executed by the

appellants/A1 to A4 and A6 shall stand cancelled. Accordingly, these three appeals are allowed.