It is settled principle of law that benefit of reasonable
doubt is required to be given to the accused only if the
reasonable doubt emerges out from the evidence on record.
Merely for the reason that the witnesses have turned hostile
in their cross-examination, the testimony in examination-in-
chief cannot be outright discarded provided the same
(statement in examination-in-chief supporting prosecution) is
corroborated from the other evidence on record.
In other words, if the court finds from the two different statements
made by the same accused, only one of the two is believable, and
what has been stated in the cross- examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 892 OF 2009
Selvaraj @ Chinnapaiyan V State represented by Inspector of Police
PRAFULLA C. PANT, J.
dated;December 09, 2014.
This appeal is directed against judgment and order
dated 8.1.2008 passed by the High Court of Judicature at
Madras in Criminal Appeal No. 337 of 2007 whereby said
Court
has
dismissed
the
appeal
of
accused-appellant
Selvaraj @ Chinnapaiyan, who was convicted by the trial
court under Section 302 of Indian Penal Code, 1860 (IPC),
and sentenced to undergo imprisonment for life and directed
to pay fine of Rs.1,000/-, in default of payment of which he
was directed to undergo rigorous imprisonment for a further
period of three months.
2.
Heard learned counsel for the parties and perused the
papers on record.
3.
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.
intimacy.
The two developed
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
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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
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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.
4.
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,
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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
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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.
5.
After giving necessary copies, as required under
Section 207 of Code of Criminal Procedure, and hearing the
parties, learned Additional Sessions Judge, Fast Track Court,
Dharmapuri, framed charge in respect of offence punishable
under Section 302 IPC against the appellant Selvaraj, and
the charge under Section 302 read with Section 109 IPC
against Sundarammal, both of whom pleaded not guilty and
claimed to be tried.
6.
Prosecution got examined PW-1 Dr. Balasubramaniam
(who conducted post mortem examination), PW-2 Selvi
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(informant and mother of the deceased), PW-3 Rajammal
(mother of the informant), PW-4 Chandra (nurse), PW-5 J.
Kuppuraj (witness of recovery memo – gunny wire), PW-6
Murugavel (another witness of the recovery memo), PW-7
Dhotta Pappan, PW-8 Barchulla (Head Constable who took
the body for autopsy), PW-9 Thathaki (Deputy Nazir of
Munsiff Court, who sent viscera for medical analysis under
orders of the Magistrate), PW-10 Chinnapappa (sister of the
informant), PW-11 Sub-Inspector Paulraj (who registered
Crime No. 110 of 2003 at the Police Station), PW-12 Dr.
Vallinayagam (Director of the Institute of Forensic Medicine),
and PW-13 Inspector Thangavel (who investigated the
crime).
7.
The oral and documentary evidence appears to have
been put to both the accused under Section 313 Cr PC, in
reply to which they alleged that the incriminating part of the
evidence is false. However, the trial court, after hearing the
parties, found both the accused, Selvaraj and his mother
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Sundarammal, guilty of the charge framed against them and
sentenced each of the accused to imprisonment for life and
directed to pay fine of Rs.1,000/-, in default of payment of
which the defaulter convict was required to undergo further
imprisonment for three months.
8.
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.
Page 8
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9.
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: -
“The deceased would appear to have died
about 12-24 hrs prior to autopsy. Opinion
about the cause of death reserved pending
chemical analysis.”
On receipt of the report from the Forensic Science
Laboratory regarding the preserved items of viscera and the
skin, PW-1 Dr. Balasubramaniam gave final opinion on
16.11.2003 which reads as under: -
“NO DEFINITE OPINION COULD BE GIVEN FOR THE
DEATH. The deceased child might have died due
to SUDDEN DEATH SYNDROME, a medical entity.”
10. As such, on going through the medical evidence and
the
statement
of
PW-12
Dr.
Vallinayagamal
Director,
Institute of Forensic Medicine, we are of the view that the
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above report is not suggestive of homicidal death of the
child, though the possibility of such death cannot be ruled
out.
11. Now, we have to see from the oral testimony of the
witnesses whether or not it establishes commission of
murder by the appellant Selvaraj of his 39 days old female
child.
12. PW-2 Selvi (mother of the deceased), who is the key
witness of the case, though supports prosecution story in her
examination-in-chief, but in the cross-examination she has
said, “The child died due to illness”. It is further stated by
her that it is correct to state that her husband did not come
to her house till the death of her child.
As such this key
witness turned hostile in the cross-examination.
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13. Similarly,
PW-3
Rajammal
(mother-in-law
of
the
appellant) has also turned hostile in her cross-examination,
and stated that it is correct to state that the child died
because of sickness. She also further told that it is correct to
state that her son-in-law did not come even after death of
the child.
14. Also PW-10 Chinapappa (sister of the informant) has
made
similar
statement
in
her
cross-examination
corroborating that the child died because of illness. As such,
all the three alleged eye witnesses took somersault in the
cross-examination, and their testimony requires to be
scrutinized with great caution.
15. It is argued on behalf of the State of Tamil Nadu that
since the eye witnesses have been won over by the accused,
as such, their statements in cross-examination cannot be
believed. On the other hand, on behalf of the appellant it is
contended that once the key witnesses have turned hostile,
their
evidence
cannot
be
relied
upon
to
record
the
conviction.
16. It is settled principle of law that benefit of reasonable
doubt is required to be given to the accused only if the
reasonable doubt emerges out from the evidence on record.
Merely for the reason that the witnesses have turned hostile
in their cross-examination, the testimony in examination-in-
chief cannot be outright discarded provided the same
(statement in examination-in-chief supporting prosecution) is
corroborated from the other evidence on record.
In other
words, if the court finds from the two different statements
made by the same accused, only one of the two is
believable,
and
what
has
been
stated
in
the
cross-
examination is false, even if the witnesses have turned
hostile, the conviction can be recorded believing the
testimony given by such witnesses in the examination-in-
chief. However, such evidence is required to be examined
with great caution.
17. 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.
18. 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.
19. Nay, PW-4 Chandra (nurse), who could be said to be
only independent witness of this case, too turned hostile to
prosecution. It is pertinent to mention here that though PW-
2, PW-3 and PW-10 turned hostile after ten days of their
examination-in-chief, i.e., for which their cross-examination
was deferred, this witness (PW-4) has turned hostile to
prosecution on the very day (22.1.2007), i.e., date of
examination-in-chief of other eye witnesses.
20. Not only this, there is no evidence on record showing
that when the child was admitted in the hospital in
Dharmapuri where she died, her medico legal was got done.
21. Lastly, it is not at all explained by the prosecution that
PW-2, PW-3 and PW-10 who said to have witnessed the
accused (Selvaraj) committing the crime, and the incident
had taken place in the parental house of the informant, why
not the accused was apprehended then and there.
Not a
single witness has stated that the accused succeeded in
running away from the place of incident.
22. We have also considered the prosecution story from the
angle of probability.
Prosecution has tried to develop the
story that the accused (Selvaraj) was strangulating the child
with the gunny wire and was simultaneously inserting paddy
seeds in the mouth of the infant. In our opinion, both these
modes simultaneously appear to be unnatural, particularly,
in view of the fact that the incident had occurred on
3.3.2003 and the child died on 6.3.2003, i.e., after a period
of three days.
PW-4 Chandra (nurse) to whom child was
taken after the incident has stated that there was nothing in
the mouth of the child when she saw her. She further stated
that the child was looking good.
23. 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.
24. 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.
25. 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.
....................................J.
[Vikramajit Sen]
....................................J.
[Prafulla C. Pant]
New Delhi;
December 09, 2014.
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