IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 25.03.2008 CORAM:- THE HON'BLE MR. JUSTICE P.D.DINAKARAN AND THE HON'BLE MR. JUSTICE R.REGUPATHI CRIMINAL APPEAL NO.700 OF 2007 Muthusamy ... Appellant/A1 vs. The State rep. by the Inspector of Police, Sendurai Police Station, Permablure District. (Cr.No.248 of 2004) ... Respondent/Complainant Appeal against the order, dated 19.07.2007, passed by the Sessions Judge, Mahila Court, Perambalure, in Sessions Case No.97 of 2006. For Appellant : Mr.R.Shanmugam, Senior Counsel for Dr.R.Gopinath For Respondent : Mr.N.R.Elango, Additional Public Prosecutor. J U D G M E N T R.REGUPATHI, J. The appellant/first accused faced trial on the charge that he murdered a boy aged about 4 1/2 year after kidnapping him with the help of the second accused. PW-1 is the wife of PW-2 and the deceased boy is their son. PW-3 is the younger sister of PW-2. The second https://hcservices.ecourts.gov.in/hcservices/ accused is the mother of PWs-2 and 3. It is the case of the prosecution that the appellant herein/first accused was in illicit intimacy with the second accused and she intended to give her daughter/PW-3 in marriage to A-1, for which, PW-2 objected and her marriage was performed with some other person in the village. Even thereafter, A-1 was attempting to separate PW-3 from her husband and in that regard, there was a panchayat in the village at the instance of PW-2. The first accused was reprimanded in the panchayat and on account of that, he nurtured grudge against PW-2. It is further the case of the prosecution that on 19.11.2004, A-2 kidnapped the deceased boy and handed over him to the appellant, who took away the boy to Palani Temple and tonsured him. After purchasing rope, knife and cloths there, he took the deceased to Mugambigai Amman Temple near Arulsakthipuram, tied his hands and leg and cut the neck with knife, resulting in his death. Finding that their son was found missing, after searching for two days, PWs-1 and 2 lodged a complaint with the police on 22.11.2004. Subsequent to the arrest of the appellant, the police party and witnesses were taken by him to the place where he committed the murder of the boy and the deceased was identified by PW-2 as his son. Thus, the first accused was charged for offences punishable under Sections 364 and 302 IPC. while the second accused under Sections 364 read with 109 IPC and 302 read with 109 IPC. In order to bring home the guilt of the accused, the prosecution examined PWs-1 to 24, marked Exs.P1 to P22 and produced MOs-1 to 6. The learned Sessions Judge, Mahila Court, Perambalur, on conclusion of the trial against the accused in S.C. No.97 of 2006, by judgment dated 19.07.2007, finding the appellant herein guilty of the aforesaid charges, sentenced him to undergo 7 years R.I. and imprisonment for life and to pay a fine of Rs.500/- and Rs.1,000/- with default sentences. The second accused was found not guilty and accordingly, she was acquitted of the charges. Aggrieved by the order of conviction and sentence, the 1st accused has preferred the above appeal. The State did not prefer any appeal as against the acquittal order in favour of A-2. 2. The prosecution case, as unfurled by its witnesses, is narrated in brief here-under:- PW-1, the mother of the deceased, has stated in her evidence that on 19.01.2004, she had been to the field after leaving her son, the deceased, at home and when she returned back, he was found missing. The deceased was studying in a kinder garden school and he was searched at various places and since nothing turned fruitful, a complaint under Ex.P1 was lodged with the police on 22.11.2004. It is her further evidence that the appellant was having illicit intimacy with the second accused, who is her mother-in-law, and such https://hcservices.ecourts.gov.in/hcservices/ affair was questioned by her husband/PW2 and, in that regard, quarrel ensued between them and the appellant had enmity towards her husband. In such circumstances, she suspected the appellant. PW-22 is the Sub Inspector of Police at Sendhurai Police Station. On receipt of the complaint from PW-1, on 22.11.2004 at 2.30 P.M., she registered a case in Crime No.248 of 2004 as 'boy missing' and Ex.P15 is the printed F.I.R. She proceeded to the residence of PW-1 and prepared observation mahazar and rough sketch viz., Exs.P17 and P16 respectively. She examined PWs-1 to 6 in the village and came to know that there was illicit intimacy between the appellant and the second accused and that the accused might have kept the deceased in illegal custody since the affair between them was questioned by PW-2. In that regard, PW-22 forwarded the particulars to the higher-ups. PW-23 is the Investigating Officer, who took up further investigation on 23.11.2004. On reaching the village of PWs-1 and 2, he verified the statement recorded by PW-22 and searched for the appellant. On 24.11.2004 at 6 A.M., the appellant/1st accused was arrested by him and in the presence of PWs-8 and 9, his statement was recorded and the admissible portion thereof is Ex.P18. Subsequent thereto, the first accused took the police party and witnesses to the scene of occurrence at Dindigul-Palani road within the jurisdiction of Ayakudi Police Station and pointed out the place where he committed the murder of the deceased. The observation mahazar prepared at that place is marked as Ex.P12 and the rough sketch as Ex.P19. He conducted inquest over the dead body of the deceased between 1 and 3.30 P.M. and Ex.P20 is the inquest report. Since the dead body was in a putrefied condition, requisition was given to the Medical Officer, Government Hospital, Palani, to conduct post-mortem at the occurrence place itself. In the meantime, in the presence of PW-18/Village Administrative Officer and PW-10/Village Assistant, he recovered bloodstained earth and sample earth under Ex.P13 mahazar. He caused photographs to be taken through a photographer. MOs-5 and 6 series are the photographs and negatives. The accused produced MO-1 aruval and the clothing of the deceased that were concealed by him in a thorny bush there and the same were recovered in the presence of witnesses under Ex.P14 mahazar. On conclusion of the post-mortem, the dead body of the deceased was handed over to PWs-1 and 2 and it was buried some distance away from the occurrence field. During the course of investigation, the Inspector examined PWs-11 and 12 who sold the rope and shirt & lungi to the accused and one Faisal, who sold MO-1/aruval to him. The accused produced a bicycle and it was also recovered under Ex.P21 mahazar. Since it came to light that it was a case of murder, the offence was modified as one under Sections 364 and 302 IPC. and express altered report under Ex.P22 was sent to the Judicial Magistrate and superior officers. The accused was thereafter remanded to judicial custody. A2 was arrested on 25.11.2004 in the presence of witnesses and her voluntary statement was recorded. Thereafter, she was remanded to judicial custody. The https://hcservices.ecourts.gov.in/hcservices/ material objects were despatched to court for receiving opinion from forensic laboratory. PW-2 is the father of the deceased and husband of PW-1. He corroborated the evidence of PW-1. As regards motive, he has specifically stated that the appellant was inimical towards him as he questioned him about his illicit intimacy with A-2. It is his further evidence that after the arrest of the appellant, he accompanied the police and witnesses when the accused took them to the place where he committed the murder of his son and, on noticing the physical features, he identified the deceased as his son. As stated earlier, PW-3 is the younger sister of PW-2 and daughter of A-2. She has stated that subsequent to the missing of the deceased, the appellant came to the village and told that he took away the child of PW-2 and kept him at Thittakudi. Since she did not support the case of the prosecution, she was treated hostile. PWs-4 to 6 are the residents of the village and they speak about the missing of the boy; however, they did not support the case of the prosecution, hence, they were treated as hostile. In the course of cross examination, PW-5 has stated that two days after the boy was found missing, on seeing the appellant in the village, he questioned him, whereupon, he stated that he took the deceased to Thittakudi and kept him at the residence of his sister there. PW-7 also speaks about the missing of the boy and as to the preparation of observation mahazar at the residence of PW-1 and his signature therein is Ex.P2. PW-8 has been examined to substantiate the arrest of the accused. He accompanied the police party and the witnesses when the accused took them to show the place where he committed the murder of the deceased. He has attested the observation mahazar prepared at the scene of occurrence as well as the confession statement of the appellant and Exs.P3 and P4 are his signatures therein. PW-9 is also a resident of the same village where PWs-1 and 2 reside. He accompanied the accused along with the police party and witnesses to the scene of occurrence. He attested the confession statement of the accused as well as the seizure mahazars and Exs.P6 and P7 are his signatures therein. PW-10 is the Village Assistant who attested the seizure mahazar and observation mahazar and Ex.P8 to P11 are his signatures therein. PW-15 is Village Administrative Officer by profession and he is the owner of the field, where the accused committed the offence. He speaks about the arrival of the police along with the accused at the scene place, preparation of observation mahazar etc. https://hcservices.ecourts.gov.in/hcservices/ PW-13 is the paternal uncle of PW-2. He has stated that the appellant had grudge against PW-2 since he questioned his illicit intimacy with A-2; that when they enquired the accused on his returning back to the village, he replied that he took the boy and left him in his sister's house at Thittakudi; and, that during police enquiry, in his presence, the accused told that he murdered the deceased at a place near Palani. It is the evidence of PW-16 that on the date of occurrence, the accused came and left his cycle at his shop and at that time, he saw the boy along with the accused. PW-17 is an employee at the kindergarten school where the deceased was studying. She has stated that the deceased did not attend the school on 19.11.2004. PW-18 is the Village Administrative Officer, who has stated that the place where the dead body was found is within his jurisdiction and he accompanied the police and other witnesses and was present at the time of preparation of mahazars and recovery of material objects and also attested Exs.P12 to 14 viz., observation and seizure mahazars. PW-19 is the photographer who took the photographs of the deceased as well as the scene of occurrence. PW-20 is also a resident of the village where PWs-1 and 2 reside. He speaks about the illicit intimacy between the appellant and the second accused and examination of the accused by the police. PW-14 is the Medical Officer, who, on requisition from the Inspector of Police, reached the scene of occurrence on 24.11.2004 for the purpose of conducting post mortem. The body was in a putrefied condition and he found the hands and legs of the deceased tied with rope, head tonsured and front portion of the neck cut however the head was not completely severed as it was in attachment with the skin at the back portion. Ex.P-11 is the post-mortem certificate, wherein, the following injuries have been noticed:- " A cut injury around the neck, below the Thyroid cartilage and end just above the medial end of clavicle and encircling the around the neck and small tag of skin attach the Head to the Body. He is shaved fully cut, all the vessels of Neck muscles and Bones (cut trachea, carlids arteries, jugular veins, cervical C4,C5 bones) C4 is attached to the Head. C5 attached to the Body. " The Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained and that the death would have occurred about 4 to 5 days prior to autopsy. https://hcservices.ecourts.gov.in/hcservices/ PW-24, on conclusion of the investigation, filed final report on 18.10.2005. When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution, he has denied his complicity in the commission of the offence and pleaded innocence. No oral or documentary evidence has been adduced by the defence. The learned trial Judge, on perusal of the materials available on record and after hearing the arguments advanced by both sides, convicted and sentenced the first accused/appellant herein as aforementioned; hence, the present appeal. 3. Learned Senior Counsel for the appellant/first accused submits that the boy was found missing on 19.11.2004, the complaint was given only on 22.11.2004 by PW-1 and the F.I.R. reached the court on 23.11.2004 at 4.35 P.M.; therefore, there is a considerable delay in registration of the F.I.R. and also forwarding the same to the court. It is the case of the prosecution that the accused was arrested on 24.11.2004 by PW-23/the Investigating Officer at 6 A.M.; that being so, some of the prosecution witnesses have stated that the accused was available in the village on the previous day itself and they apprehended the accused and produced him before police; that being so, the subsequent arrest and recoveries are falsified. On a perusal of the evidence of the prosecution witnesses, it appears that the dead body of the deceased was seen even before the arrest of the accused and therefore, the testimony of the Investigating Officer should not be relied upon. In view of the contradictory statements of the prosecution witnesses, the second accused has been acquitted of all the charges however based on the same materials, the appellant has been convicted which only shows the wrong perspective in which the trial court proceeded to hold against the appellant. 4. Per contra, learned Additional Public Prosecutor submits that even though PWs-3 to 6 have turned hostile, other witnesses viz., PWs-1, 2, 9 13 and 20 have clearly spoken to about the motive part of the prosecution case. Initially, PWs-1 and 2 exerted their fullest efforts to trace their son and their search continued for two days at various places of the village and when nothing turned fruitful, they made a complaint with the police on 22.11.2004 and, as could be seen, the case was registered as 'boy missing' and initially, no one was suspected. Subsequently, when investigation was at progress after the examination of PWs-1 to 6, doubt arose that the first accused would have either murdered the deceased or might have kept him in illegal confinement. Only after arrest of the accused on 24.11.2004 at 6 A.M., the truth was unearthed. The prosecution witnesses are rustic villagers and their statement that https://hcservices.ecourts.gov.in/hcservices/ the accused was produced by the villagers before the police cannot be taken serious note of. Further, there is no evidence at all to show that the dead body of the deceased was seen by anyone else before it was pointed out by the accused. The kidnapping of the deceased took place at the village of PW-1 and the place where the deceased was done to death is situated 100 kms. away at a village in a different District. Unless the information was divulged by the accused, it could not have been possible for the police as well as the witnesses to find out where the dead body was lying. After arrest and giving voluntary statement, it was the accused, who took the police party and the independent witnesses and identified the place where he concealed the dead body. At that time, it was 4th day and therefore, the dead body was in a highly putrefied condition, however, looking at the physical features of the corpse and the dress materials recovered, PW-2 identified the deceased as his son. Moreover, it was the accused who produced other incriminating materials objects including the weapon of offence from a thorny bush at the occurrence field where he had concealed the same. It is the evidence of the Medical Officer PW-14 that the death was due to homicidal violence. Therefore, the case of the prosecution that the appellant kidnapped the deceased, a boy of just 4 1/2 year old, to wreck vengeance against his father PW-2 and subsequently committed murder of the deceased has been proved beyond reasonable doubt and the reasonings given by the trial court are well founded. 5. We have carefully perused the entire materials available before us and considered the rival submissions advanced on either side. There is no doubt, as could be seen from the medical evidence, that this is a case of homicidal violence. Now, the issue to be determined is as to whether the trial court is justified in passing the order of conviction and sentence as against the first accused/appellant herein. There are no eye witnesses to the occurrence and this is a case of circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only towards the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. It is on the basis of these principles that we shall examine the circumstantial evidence relied on by the prosecution in this case. 6. PW-3, who is the daughter of A-2, turned hostile as well as https://hcservices.ecourts.gov.in/hcservices/ PWs-4 to 6. However, through other witnesses, viz., PWs-1, 2, 9, 13 and 20, the illicit intimacy between the appellant and second accused and the grudge nurtured by the appellant as against PW-2 when he questioned such act have been spoken to in a cogent, convincing and natural manner. It is also seen that PW-2 prevented the proposal of marriage between the appellant and PW-3 and that when the appellant attempted to disturb PW-3's marital life, at the instance of PW-2, a panchayat was held, wherein, the appellant was reprimanded. Thus, the appellant had strong enmity as against PW-2. It is the evidence of PW-1 that the appellant could not directly fight with PW-2 and that is the reason why he kidnapped their son, the deceased, and wrecked vengeance by murdering him. Though it is the case of the prosecution that A-2 took away the deceased and handed him over to the appellant, the evidence adduced to substantiate such overt act on the part of A- 2 was not accepted due to contradictions in the testimonies of the prosecution witnesses in particular PW-3, who has turned hostile, and that is the reason why A-2 was acquitted. But, insofar as the case against the appellant is concerned, the evidence of the prosecution witnesses is consistent, cogent and convincing. It is the emphatic evidence of PW-14, the Doctor who conducted the post-mortem, that the death of the deceased was due to homicidal violence. At the time when complaint was given by PW-1, it was not known to anyone that the appellant had kidnapped the deceased; that is why, the F.I.R. was registered as 'boy missing' case. PWs-1 and 2 and others searched the boy for about two days and ultimately, since he could not be traced out, they lodged the complaint with the police. The investigation of the case was at its initial stage and nothing was found out immediately and when everything was under suspicion, the complicity of the accused in the commission of offence came to be known only on 24.11.2004 when the accused was arrested; therefore, the delay in lodging the complaint and F.I.R. reaching the court need not be taken serious note of. Though some witnesses have spoken to about the presence of the accused on the previous day, it has to be seen that the witnesses are rustic villagers, deposing before court after a period of 4 years, and in such circumstance, the arrest of the accused by the Investigating Officer on 24.11.2004 cannot be suspected. Probably, the examination of the accused by the police in their presence and the subsequent sequence of events might have been narrated in line with what they have remembered at the time of trial proceedings before court. There is no material available so as to substantiate that the dead body was seen by the witnesses prior to the identification at the instance of the accused. The witnesses have consistently stated that they came to know about the place of occurrence only at the instance of the accused. Moreover, such place is situated about 100 kms. away from the village of PWs-1 and 2. We have also noticed the evidence of PW-16, an independent witness, who has stated that he had seen the accused taking the boy with him after leaving the bicycle at his shop. The said witness has no axe to grind against the appellant. https://hcservices.ecourts.gov.in/hcservices/ The other vital feature is that the details relating to the scene of occurrence where the offence was committed and the place where he concealed the incriminating material objects are within the exclusive knowledge of the accused and this aspect assumes great importance in a case of this nature involving circumstantial evidence, unerringly pointing towards the guilt of the accused. It was the accused who, after his arrest and giving voluntary statement, took the police and witnesses to the place of occurrence, pointed out the body and produced the incriminating material objects since he is the person, who alone knew exclusively about the said place and also gave particulars of the persons from whom he purchased the weapon of offence and other materials. The witnesses, who attested the statement of the accused as well as the recovery mahazars, have consistently deposed about the accused pointing out the place where he committed the offence and production of material objects by him. Added to that, persons who sold the rope, dress materials and weapon of offence have been examined during police enquiry as well as cited as witnesses before court and they corroborated the prosecution case. We again point out that no one else except the accused had the knowledge of the place of occurrence and the prosecution established this strong circumstance against the accused. Thus, the motive, identification of the place where the offence was committed and recoveries at the instance of the accused serve as rather formidable circumstances as against the accused and the prosecution has proved beyond any iota of doubt its case that it was the appellant, who took away the deceased to Palani and thereafter to the scene of occurrence, where he brutally murdered him. Though the learned senior counsel for the appellant endeavoured to discredit the evidence of the prosecution witnesses by pointing out some minor variations and contradictions and attacked the judgment of trial court, we are of the view that the appreciation of evidence broadly by the trial court could not be said to be either perverse or suffering from any patent infirmities or illegalities so as to vitiate the findings rendered by it. When the testimony of the prosecution witnesses is consistent in material particulars, trivial discrepancies and trifling contradictions would in no way render the evidence unacceptable. On a careful assessment of the evidence, to which our attention has been invited and on going through the judgment of the court below, we find that the evidence has been carefully scrutinized noticing the contradictions and infirmities wherever found and properly marshalled and analysed before passing the