IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.6.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.974 of 2007 Anandhan @ Anandhakumar .. Appellant Vs. State rep. by Inspector of Police B-2, R.S.Puram Police Station Coimbatore. .. Respondent ----- Appeal against the judgment dated 22.6.2007 made in S.C.No.53 of 2007 on the file of learned Additional District and Sessions Judge, Fast Track Court-I, Coimbatore. ----- For Appellant : Mr.K.Ethirajalu For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant, sole accused in S.C.No.53 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court-I, Coimbatore stands convicted under Section 302 IPC for causing the death of one Thagira. On being convicted, the appellant was sentenced to rigorous imprisonment for life with a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. 2. The allegation in the charge framed against the accused is that on 19/20.10.2006 at about 24.00 hours, when one Uma Maheswari and her child Thagira were sleeping in the Corporation ground, the accused called Uma Maheswari to give company for his pleasure and when she refused, he threatened her that he would do away with her child and accordingly, after the said Uma Maheswari left the place, he stuffed polythene paper in the mouth of Thagira, 1½ years old girl, strangled her and by holding her legs, thrashed her on the wall and threw her at the backside of the https://hcservices.ecourts.gov.in/hcservices/ compound of the Thippu Sultan Mosque and the child died due to the injuries sustained on the head and thereby he committed an offence punishable under Section 302, IPC. 3. The case of the prosecution, in nutshell, is as under. (a) The deceased child is the daughter of P.Ws.6 and 7. They used to collect waste papers. On the fateful day, the accused, along with P.Ws.3, 6 and 7 and one Ravi, after collecting waste papers and selling them, consumed Brandy. After taking dinner, they went to the ground at Ramachandra Road. Due to the altercation between P.W.6 and P.W.7, P.W.6 left that place. Thereafter, a quarrel arose between the accused and P.W.7, since P.W.7 refused to give company for his pleasure. Later, P.W.7 left the place, leaving the deceased child. At that time, the accused, P.W.3 and one Ravi alone were there along with children. During midnight, the accused stuffed the mouth of the child with polythene cover, strangled her throat with his towel, thrashed her on the wall and threw her at the backside of the compound wall of Thippu Sultan Mosque. (b) P.W.3, eye witness to the occurrence, in his evidence, deposed that he used to collect waste papers along with Ravi, Kumar, accused, P.W.6 and P.W.7. On the date of occurrence, at about 7 pm, after completing their work, all of them consumed brandy and had dinner. Thereafter, they went to the ground at Ramachandra Road. Due to the quarrel between P.W.6 and P.W.7, P.W.6 left the place. Later on, due to the quarrel between P.W.7 and the accused, P.W.7 left the place leaving the deceased child. Afterwards, he was in the ground along with the accused, Ravi and the deceased. At about 00.30 hours, the accused stuffed the mouth of the deceased with polythene cover, strangled her throat with his towel and thrashed her on the wall. When he questioned the accused as to his action, the accused beat him on his shoulder and threatened that he would do away with him if he reveals anything about the occurrence to the Police. (c) P.W.6, father of the deceased child, deposed that he, along with P.W.3, Ravi, his wife P.W.7 and accused, were collecting waste papers. On the date of occurrence, till 10 pm, they were consuming arrack. At that time, there was a quarrel between him and his wife, P.W.7 and therefore, he left that place. He came to know about the occurrence through the police on the next day. (d) As per the evidence of P.W.7, on the fateful day, P.W.7, along with P.W.6, accused, P.W.3 and one Ravi, after consuming arrack and having dinner, went to the ground where a quarrel arose between her and P.W.6, which resulted in P.W.6 leaving that place. The accused tried to outrage her modesty, threatening that he would do away with the deceased child. Due to the torture of the accused, she left the place and returned to the place of occurrence after two days. She was informed about the death of the deceased child and she identified the body of the https://hcservices.ecourts.gov.in/hcservices/ deceased child. (e) P.W.1 is a railway agent and a member of Thippu Sultan Mosque Committee. On 20.10.2006, at about 2.15 pm, when he went to the mosque for prayer, he was informed by P.W.2 that a child was found dead. Immediately, after informing the Secretary of the Mosque, lodged a complaint, Ex.P1. He saw the body of the deceased child with wounds on its right side neck and eye with plastic paper, M.O.1, on its mouth. (f) P.W.11, Sub Inspector of Police registered a case against the accused in Crime No.1095 of 2006 under Section 174, IPC and forwarded a copy of the FIR to the Inspector of Police. Ex.P5 is the FIR. (g) P.W.13, Inspector of Police, on receipt of Ex.P1, complaint, proceeded to the scene of occurrence at 4.45 pm, where he prepared an observation mahazar, Ex.P2 and drew a rough sketch, Ex.P8. P.W.4 attested the observation mahazar, Ex.P2. He conducted inquest over the body of the deceased child baby. Ex.P9 is the inquest report. He went to the Corporation ground and prepared Observation Mahazar, Ex.P3 and drew rough sketch Ex.P10. P.W.5 attested the observation mahazar, Ex.P3. He recorded the statements of P.Ws.6 and 7. He caused the photographs of the body of the deceased child through P.W.10. Thereafter, he sent the body to the mortuary through Head Constable, P.W.8. He prepared Ex.P6, requisition, and handed over the same as well as the body of the deceased child to P.W.8, requesting the doctor to conduct autopsy. (h) On receipt of Ex.P6, requisition for post mortem, P.W.12, Medical Officer attached to the Coimbatore Medical Hospital, conducted autopsy over the dead body of the deceased child and opined that the deceased child would appear to have died of head injuries and compression over neck sustained by her. Ex.P7 is the post mortem certificate. (i) In the meantime, based on the telephone call received from P.W.9, who used to collect waste papers, to whose house the accused went on 29.10.2006 and gave extra judicial confession that he killed the child of P.Ws.6 and 7 and requested him to give Rs.200/-, P.W.13 arrested the accused and recorded his confession statement. He seized the towel used for strangulating the neck of the deceased child under mahazar. He sent the material objects under Form 95 to the Magistrate. (j) On completion of the investigation, P.W.13 filed the final report against the accused under Section 302, IPC. The case was committed to Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 13, filed exhibits P1 to P12 and marked material objects M.Os.1 to 6. https://hcservices.ecourts.gov.in/hcservices/ (k) The accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances appeared against him, which the accused denied. Neither any witness was examined nor any documentary evidence was produced on his side. (l) The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant as aforementioned. Hence, the present appeal. 4. The learned counsel for the appellant vehemently contends that: (i)there are several contradictions in the evidence of prosecution witnesses; (ii)P.W.3, who allegedly witnessed the occurrence, has not given the complaint and the complaint was given by P.W.1, who is a Committee Member of Thippu Sultan Mosque; (iii)One Ravi who was also present at the time of occurrence, was not examined in the Court; and (iv)there is no clear evidence to prove that the appellant/accused had caused the death of the deceased child; and accordingly, seeks acquittal of the appellant/accused. 5. Per contra, learned Additional Public Prosecutor reiterated the reasons that weighed the learned trial Judge to sustain the order of conviction and sentence. 6. We have given careful consideration to the submissions of both sides. 7. The question that arises for our consideration in this appeal is whether the prosecution has proved its case against the appellant beyond reasonable doubts? 8. It is no doubt true that a small girl child of about 1½ years old was done to death in a gruesome manner by putting polythene paper in her mouth, by strangulating her neck and also by thrashing her on a nearby wall and that the child died due to the head injuries sustained by it, which is supported by the evidence of doctor, P.W.12, who conducted autopsy and Ex.P7 Postmortem Certificate wherein he opined that the deceased child would appear to have died of head injuries and compression over neck, and therefore, we are of the considered view that the prosecution has proved that part of its case. 9.1. Then, what we have to see is whether the appellant was responsible for causing the death of the deceased child. 9.2. At the outset, on appraisal of the evidence of prosecution witnesses, in the light of the submissions made by the learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the appellant, we find some doubts shrouded the case of prosecution. First of all, the law was not set in motion by the person who allegedly witnessed the occurrence. According to the prosecution, P.W.3 was present at the time of occurrence. He narrated the occurrence in the manner as put forth by the prosecution. He has stated that the appellant put polythene paper in the mouth of the child and threw the child over the wall by winding his towel around her neck. He has further stated that fearing his life at the hands of the appellant, he kept mum. 9.3. In his cross examination, P.W.3 has stated that he alone witnessed the occurrence, but he did not inform the police. It is only P.W.1, who visited the mosque next day afternoon, that too, on the information given by P.W.2, he went to the scene of occurrence and informed the police. 9.4. P.Ws.6 and 7 are the parents of the deceased child. The evidence of P.W.6, father of the deceased child is not useful to the prosecution as he only narrates that he left the place of occurrence at about 10 p.m. after quarrelling with his wife, P.W.7. 9.5. The evidence of P.W.7, mother of the deceased child, has established the case of prosecution only to the extent that the appellant threatened to murder her child if she denies him the pleasure of her company, due to which, there was a quarrel and thereafter, she left the place. 9.6. The other evidence that is required to be considered is that of P.W.9 before whom the appellant is stated to have made a confession. According to him, on 29.10.2006 at about 6 a.m., the appellant visited him and informed that he murdered the child Thagira and left the body inside the Durgah. According to P.W.9, the appellant demanded a sum of Rs.200/- and he asked the appellant to wait and left the place and rang up the police from a nearby shop and P.W.13 Inspector came and arrested the appellant. 9.7. P.W.13 Inspector has also stated that after the occurrence, he made a search of the appellant at several places and at last on 29.10.2006 he went to the residence of P.W.9 on information and arrested the appellant. But, P.W.9 in his cross examination has stated that he does not know about the occurrence. 9.8. According to P.W.9, the distance between his house and the place where P.W.6 was residing is about half a kilometre. The occurrence took place on the night of 19.10.2006 whereas the appellant appeared before P.W.9 on 29.10.2006 and in such circumstance, the statement of P.W.9 that he does not know the occurrence in person would make his entire evidence unbelievable. 9.9. That apart, there is contradiction in the filing of complaint. https://hcservices.ecourts.gov.in/hcservices/ According to P.W.1, he went to the police station and lodged the complaint. But, P.W.11 Sub Inspector has stated that he went to the Durgah and received the complaint. In Ex.P1, it has been recorded that it was received by the police in the Durgah itself. 9.10.1. Before dealing with the next contention that non examination of one Ravi, a material witness would be fatal to the case of the prosecution, it would be apt to refer the ruling on the above point. 9.10.2. It is trite law that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, is not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. 9.10.3. In the case on hand, a reading of the entire evidence shows that the parents of the deceased child as well as others, who are accustomed to live on platform and other public places, are addicted to alcohol. Even on the date of occurrence, they had a drink, followed by a quarrel. Further, P.W.6 father of the deceased child himself admits the immorality of his wife, P.W.7. According to P.W.6, immediately after consuming drinks on the fateful night, there was a quarrel between him and his wife P.W.7 and therefore, he left the place alone. The evidence of P.W.3 further reveals that one Ravi, who was also in their company throughout the day of the occurrence, also drank with them and thereafter, found lying next to P.W.7. Of course, the prosecution would say that the appellant wanted the company of P.W.7 for his pleasure, which was resisted by her and as a result, the appellant killed her child. If that be so, the only probability for the appellant to react would be to get annoyed at P.W.7 or Ravi, but, there is no reason to aim at the child, as projected by the prosecution. Even if the case of the prosecution that the appellant demanded the company of P.W.7 for his pleasure and threatened to kill her child is accepted, the evidence of P.W.3 that one Ravi was found lying next to P.W.7 cannot be lightly ignored. But, for the reasons best known to the prosecution, even though https://hcservices.ecourts.gov.in/hcservices/ the statement of Ravi was recorded under Section 161, Cr.P.C., he was not examined as prosecution witness. Failure on the part of the prosecution to examine the said Ravi as prosecution witness, who is the material evidence under the facts and circumstances of the case, is fatal to the case of the prosecution. 9.11. The discrepancies and contradictions in the evidence of all of the witnesses and non-examination of Ravi, material witness, is fatal to the case of the prosecution, as only an adverse inference could be drawn. We are, therefore, of the considered view that the above circumstances throw a serious doubt as to involvement of the appellant in the heinous crime and shifts the balance of convenience to the side of appellant giving him the benefit of doubt. 10. In view of the discussions aforementioned, we hold that the prosecution failed to prove the guilt of the appellant beyond all reasonable doubts. The appeal is allowed. The conviction and sentence imposed on the appellant by judgment of learned Sessions Judge, Fast Track Court-1, Coimbatore dated 22.6.2007 made in S.C.No.53 of 2007 is set aside. The appellant is acquitted of the charge. The fine amount if any paid by the accused shall be refunded. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl/sasi To 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT-I, COIMBATORE. 2. -do- thro THE PRL.DISTRICT AND SESSIONS JUDGE, COIMBATORE. 3. THE JUDICIAL MAGISTRATE, COIMBATORE. https://hcservices.ecourts.gov.in/hcservices/ 4. -do- thro THE CHIEF JUDICIAL MAGISTRATE, COIMBATORE. 5. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. 6. THE INSPECTOR OF POLICE, B-2, R.S.PURAM POLICE STATION, COIMBATORE. 7. THE ADDL. SUPERINTENDENT, CENTRAL PRISON, COIMBATORE. 8. THE INSPECTOR GENERAL OF POLICE, CHENNAI-4. 9. THE DISTRICT COLLECTOR, COIMBATORE. +1cc to Mr.K.Ethiraj, Advocate Sr 27637 KG(CO) km/11.7. Crl.A.No.974 of 2007. https://hcservices.ecourts.gov.in/hcservices/