IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN R.T.No.2 of 2010 and CRL.A.No.525 of 2010 Sundar @ Sundarrajan .. Appellant in S/o Samuvel CA 525/2010 and First Accused in RT 2/2010 vs State by: Inspector of Police Kammapuram P.S. Cuddalore District Cr.No.106/2009 .. Respondent in CA 525/2010 and Complainant in RT 2/2010 Referred trial registered for confirmation of death sentence imposed on the appellant/A-1 in S.C.No.23/2010 on the file of the Sessions Judge, Magalir Neethimandram, Cuddalore, by a judgment dated 30.7.2010. Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Magila Court at Cuddalore, made in S.C.No.23/2010 dated 30.7.2010. For Appellant/ accused : Mr.A.N.Thambidurai For Respondent/ Complainant : Mr.P.Kumaresan Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) The Sessions Division, Mahila Court, Cuddalore, has sought for confirmation of the sentence of death penalty imposed in S.C.No.23 of 2010 whereby the appellant/A-1 who stood charged and on trial, found guilty under Sections 364(A), 302 and 201 of IPC and awarded death penalty along with a fine of Rs.1000/- each on the first two charges and also 7 years Rigorous Imprisonment along with a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.1000/- on the third charge, in the referred trial, while the appellant/A-1 has sought for setting aside the said judgment of conviction and sentence. 2.The case of the prosecution can be stated thus: (a) P.W.1 is the mother of the deceased child Suresh, aged 7. She was living in Karkudal Village within the jurisdiction of the respondent police. Her husband was in the foreign parts. The child was doing his II Standard at Sakthi Matricualtion School at Vridhachalam. The child used to leave for school every morning at about 8.00 A.M. and come back in the afternoon at about 4.30 P.M. On the date of occurrence that was on 27.7.2009, as usual the child returned from the school by a van which was meant for the purpose of the students, and got down at Karkudal along with P.W.2, his colleague by name Kamali, aged 10. When P.W.2 and the deceased child Suresh got down from the van, the appellant/A-1 was waiting nearby along with the motorbike, came near the child, called him by name and informed the child that both her mother and grandmother were not doing well and so that, he wanted to take the child. With that false reason, he took the child from that place. This was witnessed not only by P.W.2, but also by P.W.3, a Villager of the place, who was actually coming on his way. (b) Since the child did not come back, P.W.1 made a search along with others. She also enquired P.W.2. P.W.2 furnished the facts that the deceased child Suresh was intercepted by a person, and on the reason that both the mother and grandmother of Suresh were not doing well, he took Suresh in a motorbike. Then P.W.1 went to the respondent police station and gave a complaint to P.W.18, the Sub Inspector of Police, who on the strength of Ex.P1, the complaint, given at about 7.00 P.M., registered a case in Crime No.106/2009 under Sec.366 of IPC. The printed FIR, Ex.P14, was despatched to the Court. He took up investigation, proceeded to the spot and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P15. Then he examined the witnesses and recorded their statements. (c) At about 9.22 P.M., a call was received by P.W.8 in her cellphone No.9943020435 from a person calling himself as Shankar, and it was made to know the cellphone number of P.W.1. Again a call was made by him to P.W.8 at about 9.25 P.M. and P.W.8 furnished the cellphone number of P.W.1. After the cell number was furnished, within a short span of five minutes at about 9.39 P.M., a phone call was made to the cellphone of P.W.1 by the appellant/A- 1, who demanded a ransom of Rs.5 lakhs in order to release the child. Immediately, P.W.1 rushed to the respondent police station and gave that information to the Station House Officer who was on duty at that time, and the Investigation was taken up by P.W.19, the Inspector of Police. He arrested both A-1 and A-2 on 30.7.2009, and along with P.W.13, the Village Administrative Officer, he proceeded to the house of P.W.7, where during the relevant time, A-1 and A-2 were staying. P.W.7 identified A-1 and A-2. In the presence of P.W.13, the confessional statement given by A-1 voluntarily, was recorded. The admissible part of the said confessional statement is marked as Ex.P9, pursuant to which A-1 first produced three cell phones, one with SIM card and the other two without SIM card and also M.O.5, motorcycle, which were all recovered under a cover of Ex.P10 mahazar. https://hcservices.ecourts.gov.in/hcservices/ (d) A-1/appellant took the police party to Meerankulam within which the dead body of the child was thrown after the commission of Murder. Then the fire squad was informed, and P.W.9, the Officer attached to the Fire Department, came with his Assistant, and a gunny bag was taken out, and thereafter, an observation mahazar, Ex.P12, and a rough sketch, Ex.P17, were prepared by the Investigator. After the gunny bag was taken out from Meerankulam, it was opened, and the dead body of the child along with M.O.1 series, school bag, school books and also the slate of the child, was found. (e) The Investigator conducted inquest on the dead body of Suresh in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P18. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. Thereafter, A-1 was brought to the station, and the case was converted to Sections 363 and 302 of IPC. The amended FIR, Ex.P16, was despatched to the Court, and pending investigation, the Investigator examined P.W.3 and also the child witness, P.W.2, and P.W.7, in whose house A-1 and A-2 were residing for sometime and also P.W.8, to whom two phone calls were made by Shankar on the night hours of the date of occurrence namely 27.7.2009. (f) P.W.12, the Civil Assistant Surgeon, attached to the Government Hospital, Vridhachalam, on receipt of the said requisition, has conducted autopsy on the dead body of Suresh and has issued a postmortem certificate, Ex.P8, with his opinion that the deceased would appear to have died of asphyxia by suffocation prior to dumping in water. (g) The further investigation also led to the examination of P.W.16. According to him, at about 3.30 P.M. on 28.7.2009, A-1 came to his public telephone booth and he was also demanding Rs.5 lakhs ransom. P.W.17 was also examined. He gave a statement to the effect that on 28.7.2010 at about 8.30 P.M., when he was coming from the agricultural field, he found A-1 driving a bike and A-2 sitting as pillion rider, and in between a child aged about 7, was found sitting, and thereafter, at about 10.15 or 10.30 P.M., when he was sitting in front of the house, both A-1 and A-2 were returning, but the child was not found. The Investigating Officer also examined the Officer (Legal Cell) of the Vodafone Company from whom he got documents pertaining to the particulars of cellphone calls made on 27.7.2009 and 28.7.2009, etc., and the same was marked as Ex.P5 series. (h) A requisition was forwarded to the Chief Judicial Magistrate, Cuddalore. P.W.10, the Judicial Magistrate No.I, Vridhachalam, was required to conduct the test identification parade. Accordingly, he conducted the identification parade in respect of A-1, and at that time, P.Ws.2 and 3 were taken for the purpose of identification parade. It was procedurally conducted. The identification parade proceedings are marked as Ex.P4. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 19 witnesses and also relied on 18 exhibits and 10 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the three charges levelled against the appellant/A-1 and found him guilty and awarded the above punishment. In order to seek confirmation of the death penalty, the matter is referred to by the Court of Session, while the appellant who was shown as A-1, has preferred the appeal whereby he challenged the judgment of conviction and sentence by the trial Court. However, the learned trial Judge was not convinced with the case of the prosecution in respect of A-2 and made an order of acquittal. Insofar as A-2, no appeal has been preferred by the State. 4.Seeking affirmation of the death sentence, the learned Public Prosecutor Mr.P.Kumaresan would submit that in the instant case, it was a case where a child was kidnapped for making a demand of ransom of Rs.5 lakhs; that all the circumstances were actually brought to the notice of the trial Judge that it was A-1 who had the illicit intimacy with A-2, and in order to quench his thirst, he has actually made the demand of ransom, and since it was not met, he has murdered the young child aged 7 brutally and mercilessly and also screened the evidence; that actually the act of A-1, under the circumstances, would fall under the rarest of rare cases, and hence the judgment of the trial Court awarding death penalty, was proper and it has got to be affirmed. 5.In order to fortify his contentions, the learned Public Prosecutor relied on a decision of the Apex Court reported in 2010 (3) SCC 56 (VIKRAM SINGH AND OTHERS V. STATE OF PUNJAB). 6.Advancing arguments on behalf of the appellant/A-1, the learned Counsel Mr.A.N.Thambidurai would submit that in the instant case, the prosecution had no direct evidence to offer, and it relied only upon circumstantial evidence. The learned Counsel made a caution to the Court that in a given case like this, where the prosecution rests its case exclusively on the circumstantial evidence, all the circumstances must constitute a chain without a snap and also be pointing to the hypothesis that except the accused no one could have committed the offence. In the instant case, according to the Counsel, no one circumstance was pointing to the guilt of A-1. The learned Counsel made the following comments and levelled criticisms on the evidence adduced by the prosecution. 7.According to him, the prosecution came forward to state that P.Ws.2 and 3 have actually seen A-1 along with the child, and this evidence was believed by the trial Court. The evidence of P.W.2 should have been rejected by the trial Judge. P.W.2, at the time of occurrence was only 10 years old and at the time of evidence before the Court, 11 years old. At the time when P.W.2 was examined before the Court, the maturity of the child to give evidence before the Court should have been tested. But, the trial Judge has not even recorded any question to satisfy the maturity of mind of the child to depose before a Court of law. That apart, it was only 10 years old. Under the circumstance, the evidence of https://hcservices.ecourts.gov.in/hcservices/ P.W.2 should not have been relied upon. 8.Commenting upon the evidence of P.W.3, he would submit that P.W.3 could not have seen A-1 at the place of occurrence wherefrom the child was alleged to have been kidnapped, at all; that according to P.W.3, he was not only standing there, but also one Jayaraman was standing nearby who was examined as P.W.4; that P.W.4 has categorically deposed that he came to the place of occurrence at about 7.30 P.M. and thus he could not have seen the occurrence at all; that had it been true that P.W.4 was one standing by the side of P.W.3 at the time of the alleged kidnapping, both could not have seen at all; that apart from that, according to P.W.3, he also accompanied P.W.1 to the police station; that if to be so, he would have furnished the said information, but not done so; and that under the circumstances, the evidence of P.W.3 becomes all the more doubtful. 9.Added further the learned Counsel that as far as the evidence of P.W.7 is concerned, during the relevant time, both A-1 and A-2 were actually residing in the house of P.W.7, and only to that extent, it can be taken; that except that, the other part of her evidence could not be relied; that as far as P.W.8 is concerned, according to her, there were two phone calls received by her at about 9.22 P.M. and 9.25 P.M. respectively from one Shankar, and the said Shankar wanted to know the cell phone number of P.W.1, and it was actually furnished by her in the second call made by him; and that if to be so, the Investigator should have actually made investigation whether Shankar is the person alive or a fictitious person, but no investigation was done from that angle. 10.The learned Counsel would further add that according to P.W.1, she received a phone call at about 9.39 P.M. from A-1 demanding a ransom of Rs.5 lakhs; that as far as this is concerned, she has given a phone number; but, it is pertinent to point out that on verification, the phone number from which calls were alleged to have been received from A-1 by both P.W.8 and also by P.W.1 during the relevant time, belonged to one Vathsala; but the investigation was actually not done in that line; that it would be quite indicative of the fact that A-1 did not own such a phone on that day and at the relevant time; that under the circumstances, it would also cast a suspicion; that the investigation should have been done in that line, but not actually done; that the prosecution had relied on the recovery of the material objects on being identified by the appellant/A-1; that according to P.W.13, he was the Village Administrative Officer of Karkudal Village, and he received a requisition from the Investigating Officer at about 4.30 A.M., and after getting permission from the Tahsildar, he went to the police station, and he was taken to the house of P.W.7, and on being identified by P.W.7, A-1 and A-2 were arrested pursuant to which A-1 produced three cell phones and also a motorbike. Now, at this juncture, the learned Counsel commenting upon the evidence of P.W.13 would submit that P.W.13 had gone out of his jurisdiction; that while the witnesses were available in a place 40 or 50 kms. away in a different village, those witnesses should have been examined and their statements should have been recorded, and the recovery should have been made in their presence and not in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.13; that apart from that, P.W.13 has no where stated that A-1 has taken the child to Meerankulam; that so far as the recovery mahazars alleged to have been made at Meerankulam in respect of the gunny bag or the dead body or M.O.1 series are concerned, in no one of the recovery mahazars, the signature of A-1 was obtained; that it would also cast a doubt whether such a recovery could have been made at all; and that it would also cast a doubt on the arrest, confession and recovery of the material objects. 11.Added further the learned Counsel that according to P.W.17, at about 8.30 P.M., he was coming from the agricultural field, and at that time, he found A-1 and A-2 sitting in the motorbike and in between a child was actually sitting, and they took the child, and after sometime, at about 10.15 or 10.30 P.M., when he was in front of his house, A-1 and A-2 alone were returning, but the child was not found in their company; that as far as the evidence of P.W.17 was concerned, it should have been completely rejected by the trial Court for the reason that when he gave a statement under Sec.161 of Cr.P.C., he has stated that he was coming from the agricultural operation, but when he gave evidence before the Court, he stated that he came after attending the nature's call; that apart from that, according to him, he found the appellant/A-1 nearby Meerankulam; that an observation mahazar and also a rough sketch were prepared by the Investigator in which not even a light is shown; that according to P.W.17, he found both A-1 and A-2 at about 8.30 P.M.; that he has categorically admitted at the time of his cross-examination that he had not even seen A-1 and A-2 either before or after the time, and under the circumstances, the evidence of P.W.17 was of no use to the prosecution. 12.In his further arguments, the learned Counsel made much comment on the identification parade. According to him, the identification parade was filled with infirmities and illegalities, and A-1 actually had a fracture in his lap; but at that time, no one of the persons who were actually taken for that purpose, sustained any injury, and in such circumstances, it would be quite easier for P.Ws.2 and 3 to identify the person, and after the identification parade was over, the signature of A-1 was not obtained by the Judicial Magistrate, and it is also infirm as noticed, and under the circumstances, it cannot be given any evidentiary value. 13.Added further the learned Counsel that it is an admitted position that at the time when he was arrested, he was found with a fracture; that under the circumstances, a duty was cast upon the prosecution to explain how he sustained that injury; but the prosecution has miserably failed in that regard; that apart from that, though it was the case of the prosecution that the child was kidnapped from the place of occurrence only for the purpose of making a demand of ransom, the capacity of P.W.1 to meet such a demand was not at all available in the evidence; that it can be well stated that the prosecution has miserably failed to prove the case by the so-called circumstances; that the circumstances placed were neither sufficient nor proved, and thus the prosecution has miserably failed to prove any one of the charges. https://hcservices.ecourts.gov.in/hcservices/ 14.The learned Counsel while concluding his arguments would further submit that while the trial Judge was not ready to believe the case of the prosecution insofar as A-2 against whom all the three charges were levelled, the same reasons are equally applicable and should have been applied insofar as the appellant/A- 1 also, and he should have been acquitted, and thus the judgment of the trial Court is erroneous and it has got to be set aside. 15.The Court paid its anxious consideration on the submissions made and looked into all the materials available. 16.It is not in controversy that the dead body of a child aged 7, by name Suresh, the son of P.W.1, was found in Meerankulam during the investigation conducted by P.W.19 in Crime No.106 of 2009 originally registered under Sec.363 IPC and subsequently altered to Sections 363 and 302 IPC. Following the inquest made by the Investigating Officer and preparation of the inquest report, Ex.P18, the dead body was subjected to postmortem by P.W.12, the Doctor, who has given a categorical opinion that the child died out of asphyxia due to suffocation. The cause of death as put forth by the prosecution, was never disputed by the appellant before the trial Court, and thus the trial Judge was perfectly correct in relying on the evidence of the prosecution through the medical person examined as P.W.12, and the postmortem certificate marked as Ex.P8, to record the cause of death. 17.In order to substantiate the charges that in order to get the ransom, the child of P.W.1, the deceased Suresh, was kidnapped by the appellant/A-1, and once the demand was made and the same was not met, A-1 killed the child mercilessly, put the dead body in a gunny bag and threw into the tank, the prosecution had no direct evidence to offer. But, it relied upon the circumstantial evidence. It is well settled proposition of law that the circumstantial evidence has got equal rigor and also equal vigor, and it can be relied upon provided the circumstances are clinchingly pointing to the guilt of the accused. In the instant case, the following circumstances are noticed by the Court. 18.According to P.W.1 the mother of the deceased child Suresh, the child used to leave for School every day at about 8.00 A.M. and come back at about 4.30 P.M., and on the date of occurrence, i.e., 27.7.2009, the child as usual went to the school. From the evidence of P.W.6, the Correspondent of Sakthi Matriculation School, Vridhachalam, and also the attendance register, Ex.P3, it would be quite evident that the child attended the school that day and was returning from the school in the van meant for that purpose. According to P.W.2, she is also studying along with the deceased Suresh, and on the day, both were returning from the school in the van and got down at Karkudal, and at that time A-1 who was standing under a Neem tree along with the motorbike, came to them and told the child Suresh that both his mother and grandmother were not doing well and on that false reason, took the child from the place. The evidence of P.W.2 was much commented by the learned Counsel for the appellant. But, those contentions https://hcservices.ecourts.gov.in/hcservices/ cannot be agreed. The learned trial Judge has categorically pointed out before recording the evidence that the maturity of the mind of the child, P.W.2, to give evidence was actually tested and found satisfactory, and then he recorded the evidence. The child at the time of occurrence, was 10 years old, and at the time of giving evidence, it was aged 11. The Apex Court had an occasion to consider the child evidence and the reliability thereon in a case reported in 2008 (2) SUPREME 592 (GOLLA YELUGU GOVINDU V. STATE OF ANDHRA PRADESH) wherein it has been held as follows: "7.Indian Evidence Act, 1872 (in short the Evidence Act) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease – whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S. 523). The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1)). 8.In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held as follows: "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided