Selvaraj @ Chinnapaiyan vs State Tr.Insp.Of Police

Prosecution story, in brief, is that accused-appellant Selvaraj @ Chinnapaiyan is husband of PW-2 Selvi. He belongs to Vellala Gounder Community, and PW-2 Selvi belongs to Vanniayar Community. The two developed intimacy. This was not liked by Sundarammal (mother of Selvaraj). As such the accused-appellant Selvaraj and PW-2 Selvi left the village, and started living as husband and wife in Bangalore. From their relationship PW-2 Selvi conceived a baby. Sundarammal, when came to know of it, wanted to get the baby aborted but Selvi declined to do so. On this Sundarammal approached PW-4Chandra, a nurse, and sought her help to get the baby aborted. Selvaraj also joined his mother in asking Selvi to get the pregnancy terminated. This made Selvi apprehensive of threat to her life and that of her child in the womb. She went to her parents house and stayed there. After sometime, a Panchayat of the villagers was held and marriage was arranged between Selvaraj and Selvi whereafter the accused- appellant (Selvaraj) again left for Bangalore. While he was in Bangalore, Selvi delivered a female child on 27.1.2003 in her parental village about which the appellant and his mother were informed. On 28.2.2003, the appellant Selvaraj came to his village from Bangalore. On 3.3.2003 at about 8.00 p.m., according to the prosecution, the appellant entered inside the house of PW-2 Selvi, raised the volume of radio and closed the room. From there he went to thatched shed where the young baby was sleeping. On hearing the cries of the baby, PW-2 Selvi, PW-3 Rajammal (mother of Selvi) and PW-10 Chinapappa (sister of Selvi), who were standing outside the house, rushed to the thatched shed and saw Selvaraj administering paddy seeds in the mouth of the child, and strangulating him with a gunny wire. PW-2 Selvi shouted and attempted to save the child. All the three witnesses, i.e., Selvi (PW-2), Rajammal (PW-3) and Chinapappa (PW-10) took the child to PW-4 Chandra (a nurse). She (PW-4) advised above three eye witnesses to take the child to a doctor at Marandehalli, who, in turn, directed to take the child to Government hospital, Dharmapuri. The baby was admitted in the Government Hospital, Dharmapuri on 6.3.2003 at 10.00 a.m., but died at 5.25 p.m. on the same day.

A First Information Report (Ext. P-15) was lodged by PW-2 Selvi at 11.00 p.m. on the very day (6.3.2003) at Police Station Marandehalli, which was registered as Crime No. 110 of 2003 relating to offence punishable under Section 302 IPC against the two accused, namely, Selvaraj @ Chinnapaiyan and his mother Sundarammal. Crime was investigated by PW-13 Inspector Thangavel, who interrogated the witnesses and took the body of the female child in his possession, sealed it and sent for autopsy. PW-1 Dr. Balasubramaniam conducted post mortem examination and prepared the autopsy report (Ext. P-4). He observed a linear blackish contusion of size 15mm x 1mm extending from left to right side of neck, hyoid bone found intact, ribs were intact, no foreign body found in the lungs, liver congested, stomach empty, bladder empty. PW-1 Dr. Balasubramaniam preserved a piece of skin from neck for forensic analysis and also took pieces of intestine, liver and kidney and preserved the same for forensic analysis. He recorded opinion on 7.3.2003 (the day on which autopsy was done) that "The deceased would appear to have died about 12-24 hrs prior to autopsy. Opinion about the cause of death reserved pending chemical analysis." The Forensic Science Laboratory, Vellore reported, after examination of pieces of intestine, liver, kidney and skin that there was no poison found in any of the above articles. After receiving the report of Forensic Science Laboratory, PW-1 Dr. Balasubramaniam gave final opinion on 16.11.2003 endorsing "NO DEFINITE OPINION COULD BE GIVEN FOR THE DEATH. The deceased child might have died due to SUDDEN DEATH SYNDROME, a medical entity." On completion of investigation, the Investigating Officer submitted charge- sheet against two accused, namely, the appellant Selvaraj @ Chinnapaiyan in respect of offence punishable under Section 302 IPC, and his mother Sundarammal for her trial regarding offence punishable under Section 302 read with Section 109 IPC.

Aggrieved by said judgment and order dated 5.3.2007, passed by the Additional Sessions Judge, Dharmapuri in Sessions Case No. 193 of 2006, both the convicts preferred appeal before the High Court of Judicature at Madras. The High Court, after hearing the parties, found that charge of offence punishable under Section 302 read with Section 109 IPC against co- accused Sundarammal is not proved and, as such, conviction and sentence recorded against her was set aside. However, the High Court found no merit in the appeal of the accused Selvaraj, and dismissed the same. Hence this appeal before us.

Before further discussion we think it just and proper to mention the opinion of PW-1 Dr. Balasubramaniam recorded by him in the post mortem report (Ext. P-4). On 7.3.2003 he gave his opinion after autopsy as under:

In the present case, as discussed above, even the homicidal death of the child is not clear, particularly, in view of the final opinion of the Medical Officer (PW-12) after receiving the Forensic report. Even in the autopsy report there is nothing on record suggesting strangulation or asphyxia.

Apart from the above, it is relevant to mention here that PW-5 J. Kuppuraj and PW-6 Murugavel (both witnesses of recovery memo) have not supported the prosecution case even in their examination-in-chief.

Consideration of all the above facts takes us to the conclusion that in the present case it cannot be said that prosecution has successfully proved charge of offence punishable under Section 302 IPC as against the appellant who is languishing in jail for about eight years.

For the reasons, as discussed above, we are of the view that the trial court and the High Court have erred in law in holding that the charge of offence punishable under Section 302 IPC stood proved against the appellant Selvaraj.

Therefore, the appeal is allowed. Conviction and sentence recorded against the appellant Selvaraj under Section 302 IPC is hereby set aside. He shall be set at liberty if not required in connection with any other crime.

December 09, 2014.