IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 04.10.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.403 of 2010 V. Vairavan ... Appellant/Accused ..Vs.. State, rep. by Inspector of Police, Senthurai Police Station, Ariyalur District. ... Respondent/Complainant Appeal filed against the judgment dated 18.3.2010 passed by the learned Sessions Judge, Mahila Court, Perambalur in S.C. No.36 of 2008. For Appellant : Mr. P. Tamilavel For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 18.3.2010 passed by the learned Sessions Judge, Mahila Court, Perambalur in S.C. No.36 of 2008, whereby the sole accused stood charged, tried and found guilty under Section 302 of the Indian Penal Code and awarded life imprisonment. 2. The short facts necessary for the disposal of the case can be status thus:- (i) P.W.7 is the mother of the deceased child Girija. P.W.5 is the mother of P.W.7. P.W.7 was given in marriage to one Anbumani, who was carrying on business in grocery. They got a child by name Girija. Since he suffered loss in the business, he deserted both the wife and the child. When grocery shop was being conducted, P.W.7 Devagi developed illicit intimacy with the appellant/accused. After her husband Anbumani left the matrimonial home, the appellant and P.W.7 were living together along with the child Girija. When they started living together, their relationship became strained. https://hcservices.ecourts.gov.in/hcservices/ When P.W.5 came to know about the association of P.W.7 with the appellant, she went to see them. (ii) Three days prior to the date of occurrence on 9.3.2001, she took her daughter P.W.7 to her elder daughter's house. At that time, P.Ws.5 and 7 left the child Girija in the custody of the accused/appellant. On 9.3.2001 in the morning, when P.W.1 Village Administrative Officer of the place Sendurai was in his office, he was informed by his Assistant P.W.6 that some bad water was emanated from the house of the appellant. Immediately, P.W.1 proceeded to the place, found the house locked, made an enquiry and he was informed that the child was left with the custody of the accused/ appellant by the mother earlier. (iii) P.W.1 proceeded to the respondent-police and gave report Ex.P1, on the strength of which a case came to be registered in Crime No.33 of 2001 for the offence under Section 302 of the Indian Penal Code. Express First Information Report Ex.P8 was despatched to the Court. On receipt of the copy of the First Information Report, P.W.8 Inspector of Police proceeded to the place of occurrence, made an inspection and prepared Observation Mahazar Ex.P6 and Rough sketch Ex.P6. Thereafter, he conducted inquest on the dead body in the presence of panchayatars and the witnesses and the inquest report is marked as Ex.P7. Photographs were also taken and the same are marked as Ex.P3 series and the negatives are marked as Ex.P4 series. (iv) Thereafter, the dead body was subjected to autopsy by P.W.4 Doctor, who gave opinion that the cause of death could not be fixed and the carbon copy of post-mortem Certificate is marked as Ex.P2. All the witnesses have been examined and their statements have been recorded. The material objects were subjected to chemical analysis and the report is marked as Ex.P3. Pending investigation, accused could not be secured. Under the circumstances, P.W.10 Inspector of Police laid the charge sheet on 27.9.2001 indicating that the accused/appellant was absconding. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 9 witnesses and relied on 8 documents and also relied on M.Os.1 to 4. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the accused guilty of murder and awarded the life imprisonment. Hence this appeal is filed at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case beyond reasonable doubt. The occurrence had taken place three days prior to 9.3.2001 and the case was registered under Section 302 of the Indian Penal Code. P.Ws.2 and 3, who had last seen the accused in the company of the child, were examined as witnesses. Both of them have turned hostile and hence their evidence is not useful to the prosecution. 6. Learned counsel added further that P.W.7, the mother of the deceased, was also examined and she has turned hostile. According to P.W.5, she went to her elder daughter's house along with P.W.7 and the child was in the custody of the accused/appellant. This evidence could not be believed for more reasons than one. According to her, when she returned to the house, she came alone and she found a gunny bag. Had she really seen the gunny bag, she would have gone to the police station. She did not go to the police station but the case came to be registered on the basis of the complaint given by P.W.1, the Village Administrative Officer. 7. Pointing out the evidence of P.W.5, learned counsel would urge that if really P.W.5 had gone to the house and found the dead body of the child, immediately she would have gone to the police station. But she did not do so. Under these circumstances, the conduct of P.W.5 raises a doubt. Apart from that, the identity of the dead body was not proved. Though the prosecution has come with the charge of murder, the prosecution has never proved that the child died due to homicidal violence especially when cause of death was not fixed. 8. Learned counsel added further that there was no recovery and no confession statement was recorded from the accused. It is true that the accused was arrested in the month of January, 2008. By mere abscondance, it cannot be said that the accusation against the appellant was proved. The prosecution had neither direct nor circumstantial evidence. Learned counsel has also made a caution that when the prosecution relied on circumstantial evidence, it must be proved pointing out the guilt of the accused. But the evidence placed by the prosecution did not point out to the guilt of the accused. Without considering the same, the learned Trial Judge had taken an erroneous view. 9. This Court heard the learned Additional Public Prosecutor on the above contentions paid its anxious considerations on the submissions made. 10. The case of the prosecution as could be seen above is that three days prior to 9.3.2001, the accused/appellant murdered the child and put the dead body of the child in a gunny bag and left the https://hcservices.ecourts.gov.in/hcservices/ house where he was actually living with P.W.7. It is true that in order to substantiate the said charge, the prosecution had no direct evidence to offer. But, it rests on circumstantial evidence. In the case of circumstantial evidence, the Court is mindful of caution to the ruling of the Apex Court and also settled principles of law that in a case, where the prosecution rests on circumstantial evidence, the same must constitute confidence in the mind of the Court that the circumstances, which stood against the accused, would point out the hypothesis that except the accused, no one could have committed the offence. 11. Even after application of the test, the Court is able to see the following circumstances, which stood against the accused/appellant, in committing the murder. P.W.5 is the grand mother of the child. According to P.W.5, during the relevant time, i.e. three days prior to 9.3.2001, she came to her daughter's house and that she took P.W.7 to her elder daughter's house. At that time, the custody of the child was actually handed over to the appellant. She has further deposed that when she and P.W.7 boarded the train, the custody of the child was handed over to the accused. Hence the evidence of P.W.5 regarding handing over the minor child to the accused remained unshaken. Hence, the question would naturally arise as to what happened to the child. It is for the accused to explain. But he failed to do so. What are all found is that from the date of occurrence till he was arrested in January, 2008, he was absconding all along. Hence, the conduct of the accused would show that he had no explanation to offer. 12. It is also pertinent to point out that the dead body of the child was found in a gunny bag in the house of the accused/appellant. The evidence of P.W.5 is that when she opened the house, she found the dead body in a gunny bag and she raised an alarm, but she did not go to the police station. P.W.1 went to the police station next day morning and gave a complaint Ex.P1 to P.W.9 Sub Inspector of Police. A perusal of Ex.P1 would clearly indicate that P.W.1 Village Administrative Officer came to know that a child was in the custody of the accused/appellant and he was absconding for three or four days. All are averred in Ex.P1 complaint, on the strength of which, a case came to be registered not under suspicious death, but under Section 302 of the Indian Penal code and the appellant was shown as suspected accused. 13. Apart from that, the inquest was made after registration of the case. In the inquest report, it was categorically narrated that it was the dead body of a child and the Panchayatars have accepted that after being identified by mother P.W.7 and grandmother P.W.5 that it was that of the child. The contents of the inquest was never challenged by the appellant before the Trial Court. The identity of the child would leave no doubt in the mind of the Court. https://hcservices.ecourts.gov.in/hcservices/ 14. The dead body was subjected to post-mortem. It is true that the cause of death was not fixed. But the body was found inside a gunny bag. The opinion canvassed by the Doctor was that cause of death could not be fixed. But the child died due to homicidal violence. At this juncture, it is pertinent to point out that the contention put forth by the learned counsel for the appellant that the medical opinion canvassed was not in favour of the prosecution was not convincing. If the cause of death and the medical opinion is contra to each other, the Court can take the general view that the child died due to homicidal violence. In the instant case, the prosecution was able to prove the said fact. 15. It is true, in the instant case, the prosecution could not prove the last seen theory. But, the evidence of P.W.5 that the custody of the child was with the appellant was clear. Added further, in a given case like this, if one or few circumstances are within the knowledge of the accused, it is for him to explain. If he comes with the false version or suppression of those circumstances, the Court can infer those circumstances and he will be responsible for the same. In the instant case, it is clear that the child died due to homicidal violence and the prosecution was able to prove the necessary fact that the custody of the child was handed over to the accused and thereafter, he locked the house. After murder, the dead body was found inside the house in a gunny bag and the child was identified. The prosecution was able to prove that the child died due to homicidal violence and hence he was absconding for nearly seven years. Mere absconding of the accused will not suffice. However, in the instant case, the prosecution was not only able to prove the conduct of the accused but also the other circumstances that it was the accused, who committed the murder of the child, put it in a gunny bag and left the house. Hence, the Court is of the considered opinion that the prosecution has proved the guilt of the accused. 16. All the contentions put forth by the learned counsel for the appellant do not carry any merit and the same are rejected. The judgment passed by the Trial Court does not suffer either factually or legally. The judgment of the Trial Court is sustained. The appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Judicial Magistrate, Ariyalur. 2. The Chief Judicial Magistrate Perambalur. 3. The Sessions Judge, Mahila Court, Perambalur. 4. The Superintendent, Central Prison, Tiruchirapalli. 5. The Inspector of Police, Senthurai Police Station, Ariyalur District. 6. The District Collector, Perambalur. 7. The Director General of Police, Madras – 4. 8. The Public Prosecutor, High Court, Madras. 1 cc To Mr.P.Tamilavel, Advocate, SR.72965 Crl. A. No.403 of 2010 nm(co) pmk.22.10.2010. https://hcservices.ecourts.gov.in/hcservices/