BAIL SLIP The Appellant / Accused Viz., Subramanian was directed to be released on bail as per order of this Court dated 5.2.2007 and made in Crl.M.P.No.1 of 2007 in Crl.A.No.945/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2.7.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.945 of 2006 Subramanian .. Appellant/Single Accused vs. State, rep. by Inspector of Police Thiruvennainallur Police Station Villupuram District Crime No.748/2001. .. Respondent /Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Villupuram District, dated 3.7.2006, in Sessions Case No.172 of 2004. ----- For Appellant : Mr.S.Thirunavukkarasu For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- JUDGMENT (Delivered by P.D.DINAKARAN,J.) The above appeal is directed against the judgment dated 3.7.2006 in S.C.No.172 of 2004 on the file of the learned Principal Sessions Judge, Villupuram, convicting and sentencing the appellant herein, to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for two months for the offence punishable under Section 302 IPC, to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month for the offence https://hcservices.ecourts.gov.in/hcservices/ punishable under Section 201 IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month. 2. The charge against the accused is that on 5.11.2001 at about 6.30 a.m. at Marangiyur Mettu colony in the varandha of Ramesh's house, on account of festering enmity in view of his lose in the election due to the contesting of the complainant, he with the intention of committing murder of 1½ years child of the complainant, strangulated the child and dashed the head of the child on the wall and committed murder of the child; in continuation of the abovesaid occurrence, the accused threatened Sudha that he will rape her, if she revealed the offence to others and thereafter, in order to conceal the offence, the accused buried the dead body of the deceased child under the staircase of Ramesh's house and thereby the accused committed the offences punishable under Sections 302, 506(ii) and 201, I.P.C. 3. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows. i. P.W.1 Vijayakumar and P.W.3 Selvakumari are the parents of the deceased child Manojkumar, aged 1½ years. P.W.2 Sudha is the cousin of P.W.1. P.W.4 Sekar is the brother of P.W.1. P.W.5 Subramani is the President of Marangiyur Village Panchayat. ii. P.W.1 and the accused are residing at Marangiyur. Both of them contested in the panachayat election for Marangiyur 2nd ward under the symbol of 'cot' and 'bucket' respectively, which was held on 16.10.2001. But, another person won the election. P.W.1 got more votes than the accused. After counting on 21.10.2001, the accused came in front of the house of P.W.1 and threatened him to wipe out his family for defeating him in the election. All the villagers knew about the said occurrence. iii. On 5.11.2001 at about 6.00 a.m. P.W.2, who is the daughter of P.W.1's junior uncle, took the child of P.W.1 to the house of Ramesh. After leaving the child in the cement floor, P.W.2 entered inside the house to bring broomstick. At that time she heard the cry of the child and found the accused strangulating the neck of the child. Immediately she raised alarm, but the accused caught hold of her hair and threatened her. As the neck of the child was strangulated, the eyes were protruded. Then the accused dashed the head of the child in the wall and blood came out from the mouth of the child. The child died. Then the accused directed P.W.2 to give the underskirt kept nearby and P.W.2 gave the same. Then the accused covered the dead body of the child with M.O.1 underskirt and buried the same under the staircase in the house of Ramesh. Further, the accused threatened to commit rape and murder of P.W.2, if she reveals the said occurrence to anybody. Out of fear, she went home. https://hcservices.ecourts.gov.in/hcservices/ iv. P.W.3 after completing her work asked P.W.2 about the child and P.W.2 replied her that somebody took the child. P.W.3 asked her to go and search for the child, but she did not come back. After field work, P.W.1 returned home at about 10.00 a.m. P.W.3 informed P.W.1 that P.W.2 took the child and that thereafter, the child was missing. Immediately, P.W.1 asked about the child and P.W.2 replied that she does not know. Once again at about 2.00 p.m., P.W.1 and P.Ws.3 to 5 questioned P.W.2. She revealed about the occurrence. On her identifying the place of burial, P.Ws.1 and 3 to 5 exhumed the dead body. On 6.11.2001 at about 7.00 a.m., P.W.1 lodged Ex.P1 complaint to P.W.11. v. P.W.11 Annamalai, Sub Inspector of Police, Thiruvennainallur Police Station, on receipt of Ex.P1 complaint from P.W.1 on 6.11.2001 at about 7.30 a.m., registered a case in Crime No.748 of 2001 under Section 302 I.P.C. and prepared Ex.P16 printed F.I.R. He sent the complaint and F.I.R. to the Judicial Magistrate No.II, Ulundurpet and copies of the same to the higher officials. vi. P.W.12, Jagadeesan, Inspector of Police, in-charge of Thiruvennainallur Police Station, on receipt of the case particulars, took up the case for investigation. Thereafter, he proceeded to the scene of occurrence, saw the dead body and prepared Ex.P2 Observation Mahazar and drew Ex.P17 Rough Sketch in the presence of P.W.7 Mannangatti and one Kumar. He also recovered M.O.1 underskirt under Ex.P3 Mahazar and M.O.2 sand from the place of burial under Ex.P4 Mahazar in the presence of the same witnesses. He conducted inquest over the dead body and prepared Ex.P18 inquest report. The scene of occurrence and the dead body were caused to be photographed by a photographer. M.O.5 series are photographs and M.O.6 series are negatives. During inquest, witnesses were examined and their statements were recorded, after which, the body was sent to the hospital through P.W.9 Head Constable with Ex.P5 requisition for post-mortem. vii. P.W.9 accompanied the dead body with the requisition to the Government Hospital for post-mortem. He was present throughout post- mortem. After post-mortem he removed M.O.3 banian and M.O.4 jatti, from the dead body and handed over the same to the investigating officer along with his special report under Form-95, which P.W.12 recovered. viii. P.W.8, Dr. Sumathi attached to Government Hospital, Villupuram, on receipt of the requisition and the dead body commenced post-mortem on the dead body at 4.00 p.m. on 6.11.2001. During post-mortem she found various symptoms as noted by her in Ex.P.8, the post-mortem report. The symptoms noted therein are as hereunder:- https://hcservices.ecourts.gov.in/hcservices/ 1. Contusion over the left mandibular region of the face black in colour 2x1cm. 2. Contusion left side of the neck 2cm below the left ear 2x1cm. 3. Contusion under left side of the chin 2x1cm (blueish black in colour). 4. An abrasion over centre of the neck near the jugular notch ½ x ½ cm black in colour. 5. A contusion left side cheek ½ x ½ cm black in colour. 6. Six small abrasion (nail prick injury over bridge of the nose). 7. An abrasion right arm ¼ x ¼ cm (black in colour). Abdomen distended. On opening the neck:- Contusion of the subcutaneous from corresponding to the internal injuries mentioned, thyroid, cricoid, larynx cartilages appear normal. Hyoid bone sent for analysis. On opening the chest:- Ribs intact. Heart completely empty. Lungs congested. Kidney, liver, spleen congested. Stomach contains 50mg digested food materials seen. Bladder empty. On opening the head:- Contusion of the scalp seen over reflected scalp, near the left parieto occipital region of scalp dark blue in colour 4 x 5cm. Blood clot present over the surface the brain non parietal. Spinal cord column intact." The Doctor opined that the death would have occurred 32 to 34 hours prior to autopsy as a result of asphyxia and brain haemorrhage. Ex.P.6 is the report on hyoid bone and it shows that the hyoid bone is intact. Ex.P.7 is the viscera report, which shows that no poison or alcohol was detected in the viscera. ix. P.W.13 Nataraja Muthupandiyan, Inspector of Police, Thiruvennainallur, on 9.11.2001 took up the case for further investigation. He sent Ex.P.9, the requisition to send the hyoid bone of the deceased to the Court for expert's examination. He also sent the viscera with Ex.P11 requisition to the court to subject the same for examination. He also sent M.Os.1 to 4 with Ex.P.13 requisition to the Court for chemical examination. Ex.P.15 is the Chemical Analyst Report. P.W.10 is the Magisterial Clerk, who speaks about the receipt of the case properties and sending of the same to the laboratory. The accused surrendered before the Judicial Magistrate No.I, Villupuram on 12.11.2001. P.W.13 produced the https://hcservices.ecourts.gov.in/hcservices/ accused before the Judicial Magistrate No.II, Ulundurpet and remanded him to judicial custody. On various dates, he examined official witnesses and recorded their statements. x. P.W.13 completed the investigation and after following all the legal formalities, filed the final report in the court against the accused under Sections 302, 506(ii) and 201, IPC on 30.01.2002. 4. After the case was committed to Court of Sessions, the accused was questioned and he denied his complicity. Hence, the trial commenced. To substantiate the charge against the appellant/accused, the prosecution examined 13 witnesses, marked 18 exhibits and produced 6 material objects. On completion of evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. on the incriminating materials, for which the accused made a total denial. Neither any witness was examined nor any document was marked on his side. 5. The trial Court, on scrutiny of materials placed and on hearing the arguments of both sides, found the appellant/accused guilty of the charges under Sections 302, 506(ii) and 201 I.P.C. and accordingly, convicted and sentenced him as referred to earlier. Hence, the present appeal. 6. The learned counsel for the appellant assails the conviction and sentence as under: (i) the election motive as projected by the prosecution is not proved; (ii) the testimony of solitary eye witness, viz., P.W.2, can be disbelieved, as she is closely related to P.Ws.1, 3 and 4 and her evidence is not supported by other witnesses; (iii) there is inordinate delay in lodging the complaint, as, according to the prosecution, the alleged crime is said to have taken place at 6.30 a.m. on 5.11.2001, but the complaint was lodged only at 7.00 a.m. on 6.11.2001, which is not properly explained and the same is fatal to the prosecution case; and (iv) the prosecution has not established the guilt of the accused beyond reasonable doubts and therefore, the case of the prosecution fails and accordingly, the conviction and sentence imposed on the appellant have to be set aside. 7. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor submits that: (i) P.Ws.1 and 3 to 6 had categorically stated that https://hcservices.ecourts.gov.in/hcservices/ there was prior enmity between the appellant and P.W.1 due to election and therefore, the prosecution has proved the motive beyond reasonable doubt; (ii) the evidence of P.W.2 is natural and cogent, there is no enmity between the appellant and P.W.2 to implicate him in the crime and only because she is related to P.W.1, her evidence need not be rejected, as the same is corroborated with the evidence of other prosecution witnesses; (iii) though there is some delay in lodging the complaint, the same is properly explained by the prosecution. 8. We have perused the entire materials on record and heard the submission of both sides. The question that arises for our consideration in this appeal is whether the prosecution proved the guilt of the accused beyond all reasonable doubt. 9. It is not in dispute that the deceased Manojkumar, aged 1½ years, died on account of homicidal violence. A perusal of the evidence of the doctor, P.W.8 and Ex.P.8, post-mortem certificate would reveal that the deceased died on account of asphyxia and brain haemorrhage. The doctor had specifically stated that the injuries in the neck and jaw are possible by hands and the injuries in the head are possible by dashing the head in the wall. Therefore, we have no hesitation to hold that the death of the deceased was due to homicidal violence. 10.1. The prosecution projects election as motive for the occurrence. To establish the motive, the prosecution examined P.Ws.1 and 3 to 6. P.Ws.1 and 3 are the father and mother of the deceased child Manjokumar, aged about 1½ years. According to the prosecution, both P.W.1 and the appellant contested in the panchayat election for Marangiyur 2nd ward and both of them were defeated by a third person. As the appellant felt that he was not elected because of the contest of P.W.1, he abused P.W.1 and also threatened to wipe out his family. To wreck vengeance, the appellant committed murder of 1½ years boy baby of P.W.1 by strangulating and hitting the head of the child on the wall. The appellant also threatened P.W.2, who witnessed the occurrence, saying that if she reveals the occurrence to anybody, he will rape her. Out of fear, P.W.2 took some time to inform about the occurrence to the parents of the deceased. 10.2. In Ex.P1 complaint as well as in the evidence, P.W.1 had categorically stated that both P.W.1 and the appellant contested in the election for the same ward and that both of them were defeated by a third person. Due to this defeat, the appellant developed enmity with P.W.1 and threatened P.W.1 that he would wipe out his family and https://hcservices.ecourts.gov.in/hcservices/ the same was witnessed by some of the villagers. Accordingly, the appellant committed the murder of the only boy baby of P.W.1 by strangulating the neck and hitting the head on the wall. P.W.3, mother of the deceased child, P.W.4, brother of P.W.1, and P.Ws.5 and 6, who are independent witnesses, have corroborated the evidence of P.W.1 with regard to the motive as alleged by the prosecution. P.Ws.3 and 4, wife and brother of P.W.1 respectively, deposed that both P.W.1 and the appellant contested in the panchayat election for the same ward, that both of them were defeated by a third person, that the appellant was of the view that because of P.W.1's participation in the election, he was not elected and that the appellant developed ill will towards P.W.1 and also threatened P.W.1 saying that he will destroy the entire family. P.W.5, President of Panchayat Union, had also deposed that both P.W.1 and the appellant contested in the panchayat election, that P.W.1 complained to him about the threat made by the appellant and that there was no cordial relationship between P.W.1 and the appellant. Though P.W.6, an independent witness, turned hostile in other respects, he had categorically deposed that there was prior enmity between P.W.1 and the appellant due to election. 10.3. A careful scrutiny of the evidence of P.Ws.1 and 3 to 6 shows that there was enmity between the appellant and P.W.1 with regard to election dispute. Their evidence is cogent, natural and trustworthy. Though it has been stated that P.Ws.1, 3 and 4 are closely related and their evidence cannot be relied upon, P.Ws.5 and 6, who are independent witnesses, have corroborated the evidence of P.W.1 over the election motive. The defence has no say as to why P.Ws.5 and 6 implicated the appellant in this case. Moreover, there is no cross examination much less suggestion by the defence over the election motive. Therefore, we have no hesitation in holding that the prosecution has proved that there was enmity between P.W.1 and the appellant due to election and it was the motive for the occurrence. 11.1. Now, let us analyse the evidence of P.W.2, who is the solitary eye witness to the occurrence. According to P.W.2, she is the cousin of P.W.1 and she used to take the child with her after returning from school. Likewise, on 5.11.2001 at about 6.00 a.m., she went to the house of P.W.1 and took the child near the house of one Ramesh. After leaving the child in the cement floor, she engaged in cleaning the house. On hearing the cry of the child, she came out and saw the appellant strangulating the child. She immediately raised alarm, but the appellant caught hold of her hair and threatened her. Then the appellant dashed the head of the child on the wall and committed murder of the child and buried the body under the staircase in the house of the said Ramesh. The appellant also threatened to commit rape on her, if she reveals the occurrence to anyone. https://hcservices.ecourts.gov.in/hcservices/ 11.2. Now, we have to scrutinise the evidence of P.W.2 in the light of the contention raised by the learned counsel for the appellant that the evidence of P.W.2 cannot be relied on, as she is closely related to P.W.1 and she has not disclosed about the occurrence immediately to the parents of the deceased. Though P.W.2 is closely related to P.Ws.1, 3 and 4, her evidence cannot be discarded on the mere categorisation that she is interested witness. It is the duty of the court to examine whether her evidence is natural, cogent and veracious. A close scrutiny of the evidence of P.W.2 would make it clear that it is cogent, natural and veracious, as her evidence is corroborated by other prosecution witnesses on all directions. Before the occurrence took place, she came to the house of P.W.1 and took the child with her. This fact has been deposed by P.Ws.1 and 3. After the occurrence, on her pointing out the place of burial, the body of the child was exhumed by other witnesses. This fact has been spoken to by P.Ws.1, 3 to 6. Further, the evidence of P.W.2 would show that she gave M.O.1 underskirt to cover the body on the direction of the appellant. The said underskirt, M.O.1, was recovered by the Investigating Officer in the presence of P.W.7, Village Administrative Officer. P.W.7 had corroborated the evidence of P.W.2 with respect to the recovery of M.O.1. The evidence of P.W.2 is also corroborated by medical evidence. According to P.W.2, the appellant strangulated the neck of the child and thereafter, dashed the head of the child on the wall. P.W.8, who conducted autopsy over the body, had categorically stated in her evidence that the injuries found on the neck and jaw are possible by hands and the injuries found on the head are possible by dashing the head on the wall. P.W.2 is a young girl, aged about 16 years at the time of occurrence. She was the only eye witness. There is no reason for her to implicate the appellant in this case, as she has no enmity with him. Therefore, we have no reason to disbelieve the evidence of P.W.2, as it is fully corroborated by all witnesses. 12. The last contention of the learned counsel for the appellant is that there is inordinate delay in lodging Ex.P1 to the police and the same is not properly explained by the prosecution, which is fatal to the prosecution case. The occurrence took place on 5.11.2001 at about 6.30 a.m. The complaint was lodged by P.W.1 on 6.11.2001 at about 7.00 a.m. P.W.11 registered the case at 7.30 a.m. on the same day and the complaint and FIR reached the Court at 4.55 p.m. on the same day. Though the occurrence took place at 6.30 a.m., out of fear created by the appellant, P.W.2 did not disclose anything about the occurrence to P.W.3, when she was initially examined. When the search made by all ended in vain, once again P.W.2 was questioned at 2.00 p.m. At that time only, P.W.2 narrated the entire occurrence to all. Thereafter, P.W.1 and others exhumed the body of the child under the staircase of the Ramesh's house in the presence of villagers. 1½ years child is the deceased in this case. P.Ws.1 and 3 are the parents of the deceased child. This Court could very well https://hcservices.ecourts.gov.in/hcservices/ visualise the sufferings undergone by P.W.2 as well as P.Ws.1 and 3, the parents. After consoling himself, P.W.1 lodged Ex.P1 at 7.00 a.m. on the next day. Moreover, the distance between the occurrence place and the police station is 10 km. Though there is some delay in lodging the complaint, the same is properly explained by the prosecution and it is also not fatal to the prosecution case since it has not caused any prejudice to the appellant. 13. Under such circumstances, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubts. We do not find any reason to interfere with the conclusion reached by the trial Court and therefore, the conviction and sentence recorded by the trial Court are confirmed and the appeal stands dismissed. The appellant/accused is on bail. The bail bond executed by him shall stand cancelled forthwith and the learned Sessions Judge is directed to take steps to secure the presence of the appellant/accused and commit him to jail to undergo the remaining period of sentence. The period of sentence already undergone by him shall be given set off. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ATR To 1. The PrincipalSessions Judge Villupuram District. 2. The Judicial Magistrate No.II, Ulundurpet, Villupuram District 3. -Do-Through The Chief Judicial Magistrate, Villupuram. 4. The Superintendent, Central Prison, Cuddalore. 5. The District Collector, Villupuram district. 6. The Director General of Police, Mylapore, Chennai - 4 https://hcservices.ecourts.gov.in/hcservices/ 7. The Inspector of Police Thiruvennainallur Police Station Villupuram District. 8. The Public Prosecutor High Court, Madras. + 1 CC To Mr.S.Thirunavukkarasu, Advocate SR NO.34660 Crl.A.No.945 of 2006 GV(CO0 SR(17/07/2008) https://hcservices.ecourts.gov.in/hcservices/