IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.422 of 2009 Senthilkumar .. Appellant vs State rep. By Inspector of Police K8 Arumbakkam Police Station Chennai (In Cr.No.2948/05) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Chennai at Poonamallee, made in S.C.No.503 of 2005 dated 4.4.2008. For Appellant : Mr.Gopalakrishna Lakshmana Raju Senior Counsel for Mr.T.Ravikumar For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Poonamallee, made in S.C.No.503 of 2005 whereby the sole accused/appellant stood charged under Sections 302 (2 counts) and 506 (ii) of IPC, tried, found guilty under Sec.302 (2 counts) IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence, and he was acquitted of the charge under Sec.506(ii) of IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The appellant/accused is the son of the second deceased (D2) Annamalai through his first wife. Annamalai had five daughters and one son, the appellant herein, through the first wife. On her death, he married the first deceased (D1) Amutha as the second wife. Amutha had only one boy aged 6, examined as P.W.2. There were row of houses which belonged to Annamalai. In the first house, P.W.1 working as a security, was residing. The second house was occupied by Annamalai and his wife Amutha. The third house was occupied by the accused. https://hcservices.ecourts.gov.in/hcservices/ Amutha was pressurizing her husband to settle all the properties in favour of her son P.W.2, to which course Annamalai was not amenable. Then there was often quarrel. While the accused came to know about the same, he was quarrelling with both that the property should be divided, and his share should be given to him. One month prior to the occurrence, both Annamalai and Amutha met P.W.4, an important person of that place, and informed about the situation, who in turn advised Annamalai to divide the properties among the children equally. (b) On the date of occurrence i.e., 15.9.2005, at about 10.00 P.M., P.W.1 came to his house. At that time, he found the accused standing in front of the house with a wooden-log and was threatening if anybody came forward to speak about the death of his father Annamalai and Amutha, the same thing would happen to them. On that day at about 9.30 P.M., the accused with the wooden-log got into the house and attacked D1 Amutha telling "If you are alive, you ask for the settlement of the properties". On seeing this, her husband D2 Annamalai intervened and snatched the wooden-log from him. Immediately, he has not only attacked him, but also strangulated him with the towel which was worn by him around the neck. The entire occurrence was witnessed by P.W.2. P.W.4 and others were informed about the same, and all of them arrived at the place. (c) P.W.1 proceeded to the respondent police station where P.W.8, the Sub Inspector of Police, was on duty. At about 11.45 P.M., he gave Ex.P1, the report, on the strength of which, a case came to be registered in Crime No.2948 of 2005 under Sections 302 and 506(2) IPC. The printed FIR, Ex.P9, was prepared and sent to the Court. It reached the Metropolitan Magistrate's Court at 3.00 A.M. on 16.9.2005. (d) On receipt of the copy of the FIR, the investigation was taken up by P.W.14, the Inspector of Police, who proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P15. Then, he conducted inquest on the dead bodies of both Amutha and Annamalai in the presence of witnesses and panchayatdars. The inquest report on the dead body of Amutha is marked as Ex.P16, and that of Annamalai is Ex.P17. (e) Both the dead bodies were subjected to postmortem by P.W.12, the Professor of Pathology, Kilpauk Medical College, on requisitions forwarded by the Investigator. As far as Amutha is concerned, the postmortem certificate is marked as Ex.P11, wherein the Doctor has opined that the deceased would appear to have died due to head injuries. As regards Annamalai, the postmortem certificate is Ex.P13, and the Doctor has opined that the deceased would appear to have died of asphyxia due to ligature strangulation. (f) When the investigation was pending, on the next day, i.e., 16.9.2005, the accused appeared before P.W.4 and gave an extra- judicial confession confessing the entire incident, in the presence of one Paramasivam. The same was recorded by P.W.4 in the form of a report, and it is marked as Ex.P3. The accused was taken to the respondent police station by P.W.4 and produced before the Investigator. He was arrested by the Investigator. He came forward to give a confessional statement, which was recorded. The admissible part is marked as Ex.P18, pursuant to which he produced bloodstained clothes namely M.O.6, lunghi, and M.O.7, shirt, which were recovered under a cover of mahazar. Then he was sent for judicial remand. A requisition was given to the Forensic Sciences Department by the https://hcservices.ecourts.gov.in/hcservices/ Investigator through the concerned Court for subjecting the material objects to chemical analysis. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and also relied on 20 exhibits and 21 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which he 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 and hence found him guilty under Sec.302 (2 counts) IPC and awarded life imprisonment along with fine and default sentence. However, the trial Court has recorded an order of acquittal on the charge under Sec.506(ii) IPC as far as P.W.1 is concerned. Thus, the appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.Gopalakrishna Lakshmana Raju would submit that in the instant case, the prosecution has miserably failed to prove its case; that it relied on two pieces of evidence, firstly the evidence of P.W.2, a child, aged about 6, and secondly the evidence of P.W.4 as if the accused appeared before him and gave an extra-judicial confession as found in Ex.P3; and that added circumstance, according to the prosecution, was the recovery of the bloodstained clothes from him. 5.The learned Senior Counsel would attack the entire evidence put forth by the prosecution as thoroughly unbelievable and unreliable. As far as P.W.2 is concerned, the learned Senior Counsel levelled criticism by stating that P.W.2 was only 6 years old; that even as per his evidence, he went to his grandmother's house; that the narration of the incident as spoken to by P.W.2, was not consistent to the prosecution case; that a perusal of the postmortem certificate of Amutha would clearly indicate that there was a cut injury, and a ligature mark was found on the neck; but, P.W.2 has stated that she was attacked by the accused only with the wooden-log; that had he seen the occurrence, the entire narration of the injuries would have come out from his mouth, but not so; that apart from that, P.W.2 was only six years old, and there was all possibility of tutoring; and that the narration of the incident as spoken to by P.W.2, would be indicative of the tutoring made by the interested persons and also the police officer. 6.The learned Senior Counsel brought to the notice of the Court the settled principles of law that before accepting the evidence of a child witness, the Court must exercise more care and caution. He would further submit that in the instant case, it was highly untrustworthy, and hence it has got to be eschewed. 7.Added further the learned Senior Counsel that as far as P.W.4 was concerned, his evidence should have been discarded by the trial Court for the simple reason that he was actually a Katta https://hcservices.ecourts.gov.in/hcservices/ Panchayatdar; that as could be seen from his evidence, he is actually residing in a house situated just behind the property of the deceased; that according to him, the accused appeared before him and gave such a confessional statement on the next day; that there was no reason for the accused to go over there; that it is not the evidence of P.W.4 that the accused was ever known to him or close to him; that under the circumstances, there was no need for the accused to appear before him and gave such a statement; that P.W.4 has gone to the extent that he was actually interested in both the deceased; that the family dispute was also brought to his notice; that all would go to show that such a confessional statement could not have been given by the accused either, or recorded by P.W.4; that according to P.W.4, one Paramasivam was also present at the time when the confessional statement was given; but, that Paramasivam was not examined; that it would be quite clear that P.W.4 has come forward as a tutored witness; that apart from that, he was also a henchman to the police; and that under the circumstances, his evidence cannot be given any weight or legal significance at all. 8.The learned Senior Counsel would further submit that the documents as to the recovery of bloodstained clothes namely M.Os.6 and 7, were all cooked up for the purpose of the prosecution case; that barring the evidence of P.W.2 and the so-called confessional statement, the prosecution had no further evidence to offer, and thus the prosecution has failed to prove its case, and he is entitled for acquittal. 9.Added further the learned Senior Counsel in the second line of argument that even the charge framed by the trial Court would indicate that Amutha was talking in filthy language against the accused; that under the circumstances, he has got provoked and immediately took the wooden-log and thereafter, the attack was made by him; that when the attack was going on, the father Annamalai intervened; that at that juncture, the said provocation had a reflection on D2, and hence he attacked him; that under the circumstances, if the Court comes to the conclusion that the prosecution has proved the factual position, the act of the accused would not attract the penal provision of murder; that it was only due to sudden provocation, and this has got to be considered by this Court. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that in an incident that had taken place at about 9.30 P.M. On 15.9.2005, one Amutha and her husband Annamalai were found dead. Following the inquest made by the Investigator, P.W.14, both the dead bodies were subjected to postmortem by P.W.12, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificates that Amutha died out of head injuries, and Annamalai died out of asphyxia due to strangulation. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court, and hence no impediment was felt by the trial Court in recording that they died out of homicidal violence https://hcservices.ecourts.gov.in/hcservices/ and rightly too. 12.In order to establish that it was the accused who attacked both Amutha and his father Annamalai and caused the death instantaneously at the time and place of occurrence, the prosecution relied on three pieces of evidence as could be seen from the materials available, firstly, the evidence of P.W.2, a child witness, secondly, the extra-judicial confession given by the accused to P.W.4 and thirdly, the recovery of the bloodstained shirt and lunghi produced by the accused. As far as the first piece of evidence through P.W.2, a child witness, is concerned, it is not that the Court is unmindful of the caution made by the settled principles of law that before accepting the evidence of a child witness, the Court must exercise utmost care and also must find out whether tutoring could have taken place at all. In the case on hand, it is true that P.W.2 was 6 years old. The trial Court has recorded his evidence after satisfying with the mental maturity of the child. The child has deposed that he was with the parents; that at that time, the accused came over there along with the wooden-log and attacked his mother Amutha uttering the words; and that thereafter, when his father Annamalai intervened and snatched the wooden-log from his hand, he has strangulated him with the towel which he was wearing around the neck. As regards this part of the occurrence, despite cross-examination in full, the evidence of P.W.2 stood the test. Now, the learned Senior Counsel brought to the notice of the Court that as far as D1 was concerned, injury No.2 was a cut injury, and there was a ligature mark on the neck. It is true that P.W.2 has not spoken about these facts; but, these injuries were caused to D1. At this juncture, it is pertinent to point out that while seeing the above incident, the child got into psychic fear, and then he ran away from the place immediately. It is not the evidence of the child that before he left the place, both of them died. But, the later part of the occurrence has continued when the accused continued his process of attacking them in different manners and caused the death. 13.The contention put forth by the learned Senior Counsel for the appellant that the child left for the grandmother's house and then came back, and hence he could not have seen the occurrence has got to be rejected for the simple reason that the child has categorically deposed that he came out of the house after witnessing the said occurrence, and due to psychic fear, he ran away and thereafter, he came back and found the dead bodies of his parents. The other contention put forth by the learned Senior Counsel that the name of P.W.2 is not found in the inquest report cannot by itself be a reason to reject his testimony. This Court, in short, can state that the evidence of the child P.W.2 has inspired the confidence of the Court since it is not only consistent, but also reliable. 14.The next piece of evidence was actually the extra-judicial confession given by the accused and recorded by P.W.4 in the form of report. From the evidence of P.W.4, it would be quite clear that he was a person of the place. He has deposed that on the earlier occasion, Amutha, the second wife, was quarrelling with her husband Annamalai that all the properties must be settled on her son P.W.2 to which course Annamalai was not amenable; that while coming to know about the same, the accused was also quarrelling; that both Amutha https://hcservices.ecourts.gov.in/hcservices/ and Annamalai came to his house about one month before and informed about the same; and that it was he who advised them to settle the properties equally among the children including the accused and P.W.2. This part of the evidence would clearly indicate that P.W.4 had got the clear knowledge about the family affairs and has also given advice to Annamalai to amicably solve the family dispute. When the evidence of P.W.4 is viewed from this point of view, it would be quite clear that there was a possibility of the accused appearing before him. That apart, P.W.4 was actually residing exactly on the back of the property of Annamalai, and under the circumstances, they went over there. Further, according to P.W.4, when he was in his house along with one Paramasivam, the accused appeared before him and narrated the incident. The same was written in the form of a report, marked as Ex.P3, and he was actually taken to the police station along with Ex.P3. Now, at this juncture, much comment that was made by the learned Senior Counsel about his evidence has got to be rejected for the simple reason that the alleged extra-judicial confession given by the accused and recorded by P.W.4 was made on 16.9.2005, and the same has reached the Court the very day. This would clearly speak of the truth of the same. As far as the statement of P.W.2 recorded under Sec.161 Cr.P.C. is concerned, it has also reached the Court the very day. 15.It is settled proposition of law that in a given case like this, the Court can sustain a conviction merely on the extra-judicial confession if it passes two tests, firstly, when and under what circumstance the extra-judicial confession was given and secondly, whether the evidence of the person to whom such extra-judicial confession is alleged to have been made inspires the confidence of the Court. Even if these two tests are applied, this Court is thoroughly satisfied that the evidence of P.W.4 has got to be accepted, and also the extra-judicial confession in the form of a report, Ex.P3, has got to be accepted. All put together would clearly indicate that the prosecution has brought home the factual position that it was the appellant/accused who attacked both Amutha and her husband Annamalai and caused the death instantaneously. 16.As far as the second line of argument is concerned, this Court is unable to agree with the learned Senior Counsel. In the entire evidence, nothing is whispered that just preceding the occurrence, Amutha was uttering any filthy words which would provoke him. In the absence of any material, this Court is not inclined to accept the contention put forth by the learned Senior Counsel. As far as D2 Annamalai is concerned, he is actually the husband of D1 Amutha. At the time when the accused attacked D1, he has snatched the wooden-log from the hands of the accused since the human nature, at that juncture, would warrant so. But, the accused had no justification in strangulating his father and causing his death instantaneously. As far as D1 is concerned, without any quarrel or provocation and as regards D2, without any justification, he has made the attack. Thus it would be quite clear that the accused entering into the house with the wooden-log, attacked D1 and committed patricide by strangulating D2. The trial Court was perfectly correct in finding him guilty and awarding life imprisonment. There is nothing to disturb the judgment rendered by the trial Court either factually or legally, and thus it has got to be sustained. https://hcservices.ecourts.gov.in/hcservices/ 17.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrarnsv To: 1. The Additional Sessions Judge Chennai at Poonamallee. 2. -do- Through The Principal Sessions Judge, Chennai. 3. The V Metropolitan Magistrate, Egmore, Chennai. 4. -do- Through The Chief Judicial Magistrate, Egmore, Chennai. 5. The Inspector of Police K8 Arumbakkam Police Station Chennai. (In Cr.No.2948/05) 6. The Superintendent of Police, Central Prison, Puzhal, Chennai. 7. The District Collector, Chennai. 8. The Director General of Police, Chennai. 9. The Public Prosecutor, High Court, Madras. CRL.A.No.422 of 2009 SJ(CO) RVL 31.12.2009 https://hcservices.ecourts.gov.in/hcservices/