SELVARAJ @ CHINNAPAIYAN Vs. STATE TR.INSP.OF POLICE : Supreme Court – Section-302 of Indian Penal Code 1860
Supreme Court of India
CRIMINAL APPEAL NO. 892 OF 2009 Judgment Date: Dec 09, 2014
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 892 OF 2009
Selvaraj @ Chinnapaiyan ... Appellant
Versus
State represented by
Inspector of Police ... Respondent
J U D G M E N T
PRAFULLA C. PANT, J.
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.
Heard learned counsel for the parties and perused the papers on record.
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.
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.
Prosecution got examined PW-1 Dr. Balasubramaniam (who conducted post
mortem examination), PW-2 Selvi (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).
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
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.
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:
-
"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."
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 above report is not suggestive of homicidal death of the
child, though the possibility of such death cannot be ruled out.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
....................................J.
[Vikramajit Sen]
....................................J.
[Prafulla C. Pant]
New Delhi;
December 09, 2014.