P.N.PRAKASH, J.
This criminal appeal is filed against the judgment dated 03.04.2017 in S.C.No.168/2012 on the file of the Mahila Fast Track Court, Dindigul.
2. The appellant is the accused in S.C.No.168/2012 and the trial Court framed three charges, as detailed below:
Charges Penal Provisions 1 366(A)IPC 2 376 IPC 3 302 IPC
3. By Judgment dated 03.04.2017, the trial Court convicted and sentenced the appellant/accused, as detailed below:-
Section of Law Sentence of imprisonment Fine amount 366 IPC To undergo rigorous Rs.1,000/-, in default to imprisonment for ten undergo imprisonment for six years months 376 IPC To undergo imprisonment Rs.1,000/-, in default, to for life undergo imprisonment for six months 302 IPC To undergo imprisonment Rs.1,000/-, in default, to for life undergo imprisonment for six months The sentences were ordered to run concurrently. Challenging the said http://www.judis.nic.in 3 conviction and sentence, the appellant has preferred this Criminal Appeal.
4. The prosecution case is as follows:
Palanichamy [P.W.-1] and his wife Eswari [P.W.-2] were residing in A.K.G.Nagar near Marudhanadhi Village. On 04.05.2011, Palanichamy [P.W.-1] came with his two children, viz., Kalidass (11 years) and Kaleeswari (6 years) to Marudhanadhi Village for the village festival and dropped his two children in the house of his family friend Meena [P.W.-5] and her husband Pandi [P.W.-6] and left for work. The appellant is the nephew of Meena [P.W.-5] and he had also come to her house for the temple festival. On the same day around 3.00 p.m., when Palanichamy [P.W.-1] and his wife Eswari [P.W.-2] came to Meena's [P.W.-5's] house to pick up their children, they did not find Kaleeswari [deceased]. When Kalidass [P.W.-3] was asked, he said that the appellant took Kaleeswari with him for getting her biscuits and chocolates. When the appellant was questioned, he stated that after getting her biscuits, he dropped her in the temple. The families of Palanichamy [P.W.-1] and Meena [P.W.-5] searched for Kaleeswari [deceased], but in vain. Announcements were made through the public http://www.judis.nic.in 4 address system in the temple, but to no avail. Ultimately, on the complaint [Ex.P.-1] lodged by Palanichamy [P.W.-1], Murugesan [P.W.-24] Head Constable, registered a case in Crime No.121/2011 for 'girl missing' on 07.05.2011 at 14 hrs. and investigation of the case was taken over by Srinivasan [P.W-27] Inspector of Police. On 08.05.2011, the appellant was arrested and based on his confession, the decomposed body of Kaleeswari was recovered from a desolate place amongst the bushes at Peelikaradu near Marudhanadhi Dam.
4.1. The Investigating Officer [P.W.-27] prepared the observation mahazar [Ex.P-4] and the rough sketch [Ex.P-18]. In the presence of Panchayatdars, he [P.W.-27] conducted inquest over the body of the deceased between 12 and 14 hrs. and prepared the inquest report [Ex.P-19]. The Investigating Officer [P.W.-27] despatched the body through Karuppiah HC-131 [P.W.-25] to the Government Hospital, Batlagundu for postmortem.
4.2. Dr.Juliana Jeyanthi [P.W.-19] conducted autopsy over the body of the deceased and issued the postmortem certificate [Ex.P-5], and final opinion [Ex.P-6], after receiving the biology report. In her http://www.judis.nic.in 5 evidence as well in the postmortem certificate [Ex.P-5], the following injuries have been noted:
“Appearances found at the postmortem: Moderately nourished decomposed body of a female aged about 06 years. Finger and toe nails were blue. Crawling maggots seen all over the body.
The following ante-mortem injuries were noted over the body;
1.Fracture of size 0.5 cm x 0.5 cm x through and through and 0.5 cm x 0.5 cm x through and through seen over the middle of the left greater horn and right greater horn of the hyoid respectively with the surrounding bruise injuring the surrounding muscles.
2.Vaginal introits was torn (3 cms x 3 cms x 1.5 cms) at 6' O clock position with the surrounding bruise injuring the surrounding muscles, vessels and nerves. Margins were irregular. Hymen was torn. Vagina freely admitted one finger.
Other findings:
Peritoneal cavity, pleural cavities – empty, pericardium contains 5 ml of decomposed fluid, heard – flabby; lungs, liver, spleen, and kidneys – cut section congested. Larynx and trachea – decomposed; hyoid bone- described in the injury column. Stomach-empty, with the smell of decomposition, mucosa-decomposed.
Small intestine-contains 10 ml of decomposed fluid with http://www.judis.nic.in 6 the smell of decomposition, mucosa-decomposed, bladder-empty; uterus-normal size, cut section empty; brain-pulpy and blood tinged.
Opinion:
Reserved pending chemical examination report. Note: Certival swab taken and handed over to incharge PC HC131 Karuppiah for chemical examination at Regional Forensic Lab, Madurai.” The vaginal swabs and the garments including the under garments of the deceased were sent to the Tamil Nadu Forensic Science Laboratory and the Biology reports, viz., Ex.P-15 and Ex.P-16 state that no blood or semen was detected in any of the items. After obtaining the reports, Dr.Juliana Jayanthi [P.W.-19] gave the final opinion, which reads as under:
The deceased would appear to have died of asphyxia due to strangulation, five days, prior to autopsy. The deceased has been subjected to forcible sexual intercourse, before death.” 4.3. The appellant was examined by Dr.Thirumalaisamy [P.W.-21], who, in his evidence as well in his report [Ex.P-8], has stated that he is capable of coitus.
http://www.judis.nic.in 7 4.4. Chandrasekar [P.W.-23], Radiologist, performed the radiological test and determined the age of the appellant and gave his opinion that the age of the appellant would be between 21 and 24 years vide Ex.P-13.
4.5. Karthiga [P.W.-22] Judicial Magistrate No.I, Dindigul conducted Test Identification Parade on 18.05.2011, in which, Kalidass [P.W.-3] and Murugan [P.W.-4] identified the appellant. The Test Identification Parade report was marked as Ex.P-11. After examining some witnesses and after obtaining various reports, the police completed the investigation and filed final report in P.R.C.NO.32/2011 before the Judicial Magistrate, Nilakottai for the offences under
Sections 366(A),376 and
302 IPC against the appellant.
4.6. On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.168/2012 and was made over to the Mahila Court, Dindigul, for trial.
4.7. The trial Court framed the charges as stated in paragraph http://www.judis.nic.in 8 No.2 supra. When questioned, the appellant pleaded not guilty. To prove the case, the prosecution examined 28 witnesses, marked 23 exhibits and 7 material objects.
4.8. When the appellant was questioned under Section 313 Cr.P.C about the incriminating circumstances appearing against him, he denied the same. After considering the evidence on record and on hearing either side, the trial court convicted the appellant as stated in paragraph No.3 above, challenging which, the present appeal has been preferred.
5. Heard Mr.N.Ananthapadmanaban, learned Counsel representing Mr.R.Alagumani, learned counsel on record for the appellant and the learned Additional Public Prosecutor for the respondent State.
6. The prosecution has proved beyond cavil the following facts: (1) the deceased Kaleeswari was the younger sister of Kalidass [P.W.-3] and daughter of Palanichamy [P.W.-1] and Eswari [P.W.-2];
2.they were living in A.K.G.Nagar;
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3.The Muthumariamman temple festival had begun in Marudhanadhi Village on 04.05.2011;
4.Palanichamy [P.W.-1] came to Marudhanadhi Village for the temple festival on 04.05.2011 and dropped his two children in the house of Meena [P.W.-5] and Pandi [P.W.-6];
5.Thereafter, Kaleeswari went missing on 04.05.2011 and thereafter, her body was recovered on 08.05.2011 amongst bushes in a desolate place a little away from Marudhanadhi Village;
6.The medical evidence shows that Kaleeswari was sexually abused and murdered;
7. The moot question is whether the appellant had committed the offences, for which, he was charged.
8. Meena [P.W.-5] has stated that she lives with her family in Marudhanadhi Village and the family of Palanichamy [P.W.-1] is known to her well; on 04.05.2011, the Muthumariamman Temple festival was going on in her village, for which, Palanichamy [P.W.-1] and his two children, namely, Kalidass [P.W.-3] and Kaleeswari (deceased) came to her house; the appellant Karthick is her nephew and he had also come http://www.judis.nic.in 10 for the temple festival; after dropping his children, Palanichamy [P.W.-1] went for work; Karthick was playing with the children; her [P.W.-5's] children were taking biscuits and chocolates, on seeing which, Kaleeswari also wanted chocolates; so, the appellant took Kaleeswari with him to get her chocolates from the shop of Ochammal [P.W.-7] around 11.00 a.m.; after that, the appellant did not return; around 3.00 p.m., Palanichamy [P.W.-1] and his wife Eswari [P.W.-2] came to her house after worshipping in the temple; when they asked for their children, she [P.W.-5] told them that the children will be somewhere around; they went in search of the children and did not find Kaleeswari; two days later, they lodged a police complaint; thereafter, she learnt that the body of Kaleeswari was found near the dam. In the cross-examination, she has stated that the appellant had come with his parents and stayed in her house and they all left on Friday. Pandi [P.W.-6] her husband has generally corroborated her evidence.
9. Kalidass [P.W.-3], the elder brother of the deceased was 15 years old, when he was examined in the trial Court on 04.10.2013. He has stated that on 04.05.2011, he came with his father [P.W.-1] and http://www.judis.nic.in 11 sister to Meena Aunty's [P.W.-5] house for the temple festival; he was playing with his friends near the temple; around 12.00 p.m., the appellant took his sister with him saying that he wants to get her chocolates and biscuits; thereafter, he [P.W.-3] did not see his sister Kaleeswari; around 3.00 p.m., his parents [P.W.-1 and P.W.-2] came to take them back and at that time, when they asked him about Kaleeswari, he told them that the appellant had taken her for getting her chocolates and biscuits; when he [P.W.-3] and his father [P.W.-1] asked the appellant as to where Kaleeswari is, he [appellant] told them that he dropped Kaleeswari in the temple after getting her biscuits and chocolates, for which, his father shouted; thereafter they all searched for Kaleeswari and his father gave a police complaint on 07.05.2011, after which, Kaleeswari's body was found near the dam. He has further stated that on 18.05.2011, he identified the appellant in the Test Identification Parade that was conducted in the jail. In our opinion, there was no necessity for the police to conduct the Test Identification Parade for Kalidass [P.W.-3], because, the appellant was not a stranger to him. Be that as it may, it must be remembered that Kalidass [P.W.-3] was studying in 11th standard, when he gave evidence before the Sessions Court on 04.10.2013. Therefore, he http://www.judis.nic.in 12 must have been studying in the 9th standard in 2011, when the incident took place.
10. In the cross-examination of Kalidass [P.W.-3], he has reiterated that while he was playing with his friends near the temple, he [P.W.-3] saw the appellant taking his sister and when he asked him, he [appellant] told him that he is taking her for getting chocolates and biscuits for her. Further, in the cross-examination, he has stated that on 08.05.2011, he saw the appellant at Peelikaradu. It may be recollected that the body of the deceased was recovered from Peelikaradu, based on the disclosure of the appellant.
11. The prosecution examined Ochammal [P.W.-7] and Muniyandi [P.W.-8] to prove that the appellant had come to their shop with the deceased Kaleeswari and had bought bread and chocolates. Ochammal [P.W.-7] in her evidence has stated that she runs a petty shop in Marudhanadhi Village and she knows Palanichamy [P.W.-1] and his family. She has stated that 2½ years back, during the Muthumariamman Temple Festival, the appellant came with Kaleeswari to her shop and bought bread and chocolates; on the same day, http://www.judis.nic.in 13 around 3.00 p.m., Kaleeswari's father Palanichamy [P.W.-1] came to their shop and asked about the whereabouts of Kaleeswari and she [P.W.-7] told him that she does not know her whereabouts.
12. In the complaint [Ex.P-1], that was given by Palanichamy [P.W.-1], he has narrated the following facts:
(a) Kalidass [P.W.-3] told him that the appellant had taken Kaleeswari for getting her biscuits and chocolates;
(b) That he went to Ochammal's [P.W.-7's] shop and asked her and she told him that the appellant had indeed come with Kaleeswari and got her chocolates;
(c) that when he [P.W.-1] confronted the appellant, he [appellant] said that he got chocolates for Kaleeswari, but left her near the temple;
13. Apart from this evidence, we have the evidence of three persons, namely, Murugan, S/o.Thangam [P.W.-4], Murugan, S/o.Ramaraj [P.W.-14] and Murugan, S/o.Veeranan [P.W.-15], who have also stated that they saw the appellant and the deceased near the Peelikaradu area.
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14. Mr.N.Ananthapadmanaban attacked their evidence vehemently and submitted that Murugan, S/o.Thangam is the own brother of Eswari [P.W.-2] and the maternal uncle of the deceased. While that being so, had he seen his niece with the appellant near Peelikaradu, he would not have left it at that, but would have definitely questioned the appellant as to where he is taking the child. There appears to be sufficient force in the submission of Mr.N.Ananthapadmanaban with regard to the evidence of the three Murugans. Even if we keep the testimonies of the three Murugans, namely, P.W.-4, P.W.-14 and P.W.-15, in the back burner, we have the evidence of Kalidass [P.W.-3], Meena [P.W.-5], Pandi [P.W.-6] and Ochammal [P.W.-7], who have all stated that the child was last seen with the appellant around 12 noon on 04.05.2011.
15. Mr.N.Ananthapadmanaban contended that the appellant had not absconded and was available when Palanichamy [P.W.-1] came to fetch the children. He further contended that when Palanichamy [P.W.-1] questioned the appellant, the appellant did not deny that he did not take Kaleeswari, but told him that after getting chocolates, he dropped her near the temple. He further contended that had the http://www.judis.nic.in 15 appellant committed such a heinous crime, he would not have been available in the village and would have absconded. Though at the first blush, this argument did sound appealing, yet, the fallacy in it can be discerned on a careful scrutiny of the evidence on record.
16. Meena, [P.W.-5] who is none other than the aunt of the appellant, and her husband Pandi [P.W.-6] have supported the prosecution case and have stated that it was the appellant, who had taken Kaleeswari from her house on the pretext of getting her biscuits and chocolates. Thereafter, neither the appellant nor Kaleeswari returned. Only after Palanichamy [P.W.-1] came at 3.00 p.m. and started searching for his daughter, the appellant became available. When the appellant had taken the child from the house of Meena [P.W.-5], his explanation that after getting the chocolates, he dropped the six year old child near the temple just like that, does not cut ice with us. The explanation proffered by the appellant did not satisfy Palanichamy [P.W.-1] also and that is why, Palanichamy [P.W.-1] shouted at the appellant, about which, Kalidass [P.W.-3] has spoken to.
17. Mr.N.Ananthapadmanaban submitted that the complaint http://www.judis.nic.in 16 [Ex.P-1] in this case was not given on 04.05.2011, but was given only on 07.05.2011, which, does cast a serious doubt in the case of the prosecution. To appreciate this contention of Mr.N.Ananthapadmanaban, it may be necessary to scrutinise the evidence of Palanichamy [P.W.-1]:
18. After narrating the events up to the time when he [P.W.-1] started searching for Kaleeswari, Palanichamy [P.W.-1] has stated that at his request, announcements were made in the public address system of the temple about the missing of the child; he [P.W.-1] searched in the house of his relatives also at various places; ultimately, when he [P.W.-1] was not able to get any clue about the child, he [P.W.-1] went to the police station and lodged the complaint [Ex.P-1] on 07.05.2011.
19. Now, let us examine the status of Palanichamy [P.W.-1]: A reading of his evidence shows that he [P.W.-1] is an ordinary daily wage earner and does not even know to write. He [P.W.-1] was not the scribe of the complaint and someone else had written it for him.
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20. Mr.N.Ananthapadmanaban contended that the FIR [Ex.P-14] had gone to the jurisdictional Magistrate only on 08.05.2011 and therefore, not much importance can be attached to it; the FIR [Ex.P-14] was merely registered for 'girl missing' and not for any cognizable offence; only after the arrest of the appellant, he gave a confession statement to the police and on his disclosure and saying, which is relevant under
Section 27 of the Evidence Act, the body was discovered. The evidence of Periyakaruppi [P.W.-11], Alagammal [P.W.-12] and Vijaya [P.W.-13] and the Investigating Officer [P.W.-27] about the discovery of the body on the showing of the appellant from an uninhabited place amongst bushes near the dam is a powerful circumstance incriminating the appellant, for which, the appellant has not given any plausible explanation, either in the cross-examination of the witnesses or in the examination under Section 313 Cr.P.C.
21. Mr.N.Ananthapadmanaban relied upon a decision of the Supreme Court in Mousam Singha Roy and others v. State of West Bengal, [2003 (12) SCC 377] to persuade us not to place reliance upon the evidence of Murugan, S/o.Thangam [P.W.-4], Murugan, S/o.Ramraj [P.W.-14] and Murugan, S/o.Veeranan [P.W.-15]. http://www.judis.nic.in 18 As alluded to above, even if we reject the evidence of these three witnesses, the explanation of the appellant that he dropped the six year old child near the temple after getting her biscuits and chocolates coupled with the discovery of the body of the child pursuant to the disclosure and showing of the place by the appellant cannot be lightly dismissed by this Court.
22. At this juncture, we may profitably refer to the judgment of the Supreme Court in Suresh and another v. State of Haryana [(2015) 2 SCC 227], wherein the Supreme Court has held as follows:
“9.Apart from the above, this is a case where
Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and
Section 106 is not meant to relive it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries http://www.judis.nic.in 19 which was admissible under
Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan v. Jaggu Ram.
23. In fine, we find that the appeal lacks merit and the same is accordingly, dismissed and the judgment dated 03.04.2017 of the trial Court in S.C.No.168/2012 stands confirmed.