Crux of the case
3. The case of the prosecution is that the deceased minor child, aged about eight years, had gone to her grandparents’ house for the summer vacation. On 11.05.2014, when the deceased child was playing with her younger brother, the accused had enticed her by offering her to buy ice cream and took her in his two wheeler, in order to steal her gold ear studs with droppings. On the way back, he had taken the deceased child to a secluded place and had committed the offence of penetrative sexual assault on her and smothered her to death. Thereafter, in order to conceal the body, he threw it in a well and thereby committed the offence for which he was charged.
4. In order to substantiate the charges levelled against the accused, 23 witnesses (P.W.1 to P.W.23) were examined, 27 documents (Exs.P.1 to P.27) were marked, together with 9 material objects (M.O.1 to M.O.9) on the prosecution side. The defense had examined 2 witnesses, (D.W.1 and D.W.2) and marked 4 documents (Exs.D.1 to D.4) on their side.
Examination of the witnesses
5.1. To establish the case of the prosecution, the following witnesses were examined:-
5.2. Ranganathan-P.W.1 is the grandfather of the deceased child. According to him, on 01.05.2014, he had brought the deceased child and her brother (P.W.8) from his daughter’s house (P.W.3) to his house for their vacation. On 11.05.2014, when the deceased child and P.W.8 were playing near the temple in his street, he testified that the deceased child went missing. He then searched for her along with his son P.W.2. When the girl was not to be traced, he informed his daughter/mother of the deceased child (P.W.3) and thereafter gave a complaint to the Police, which was registered under the caption “girl missing” through an FIR (Ex.P22). On 12.05.2014, when he received the news about the body of a child floating in a well belonging to P.W.10, he, along with others, had gone there and identified it as his granddaughter. He had also deposed that the deceased’s younger brother had told him that it was the accused, who had taken the deceased with him in a two wheeler while they were playing. He had further deposed that his son (P.W.2) and one Siva had seen the accused taking ‘some’ child with him in a two wheeler.
5.3. Gajendran-P.W.2 is the maternal uncle of the deceased, who states that the deceased had gone missing while playing near the temple on 11.05.2014 and his father P.W.1 had given the complaint. When he heard about the news of a body floating in a well, he had gone there and seen the retrieving of the body. He further would state that the younger brother of the deceased (P.W.8) had informed him that it was the accused who had taken the deceased child on 11.05.2014, when they were playing near the temple. At the same time, he had also seen the accused from a distance taking some child in his two wheeler. He had identified the golden ear studs with droppings, which was marked as M.O.9, as well as the two wheeler (M.O.8) and had signed as one of the witness in the seizure mahazar (Ex.P.2).
5.4. Amudha-P.W.3 is the mother of the deceased child, who states that when she received the news from P.W.1 about her daughter missing, she had gone to her father’s house and had searched for her daughter. She also speaks about the complaint given to the Police in this regard. It is her further statement that when she heard about the news that a body was floating in a well, she had gone there and identified her daughter. It is her statement that her minor son (P.W.8) and her brother (P.W.2) had informed her that the accused had taken the deceased child in his two wheeler.
5.5. Chakravarthy-P.W.4, who is the Village Administrative Officer, in his testimony, speaks about the information he received from P.W.10 about a body floating in his well and had gone there. He had then given a complaint (Ex.P.4) to the Police.
5.6. Sudhakar-P.W.5 is the witness to the observation mahazar (Ex.P.5). 5.7. Baskaran-P.W.6 is the employee at the Fire Fighting Station of Tiruttani, who speaks about the information received from the Investigating Officer about the dead body floating in a well and retrieval of the body from the well.
5.8 Velu-P.W.7 is a witness to the observation mahazar (EX.P.6).
5.9. Minor Vignesh-P.W.8 is the younger brother of the deceased child, who was aged about seven years. After ascertaining the mental capability of the minor boy to depose before the Trial Court, he was examined. In his testimony, he has testified that he knows the accused and on 11.05.2014, while he was playing with his deceased sister and one Nila, the accused had taken away his sister in a two wheeler for buying ice cream. After that, when his grandmother returned home at 01.00 P.M. and searched for the deceased child, P.W.8 had informed his grandmother that it was the accused who had taken his sister in a two wheeler. He also speaks of having seen the body of his sister with both the ears being torn.
5.10. Selvaraj-P.W.9 is the Doctor who had conducted the potency test of the accused and the medical certificate, marked as Ex.P.7, certified him to be ‘potent’.
5.11. Rudhraiya-P.W.10 is the owner of the well in which the body of the deceased child was found. According to him, on that fateful day, when he switched on the motor pump and looked into the well, he had found the body of the deceased child. In the cross examination, he would state that he had first seen the body between 07.00 and 7.30 A.M. and that when the body was retrieved from the well, the accused was also present therein.
5.12. Babulal-P.W.11 is a pawn broker who speaks about the accused having pledged a pair of gold ear studs, the photograph of which was marked as M.O.1 and the receipt of the pledged jewels as Ex.P.8.
5.13. Nirmala-P.W.12 is the Village Administrative Officer, who claims that the accused had voluntarily given a confession statement on 11.05.2014 at 08.00 A.M. confessing to the crime. She then had produced the accused before the Police and gave a written complaint (Ex.P.9) and confession statement (Ex.P.10). She also was a witness to the confession given by the accused before the Police and her signature was marked as Ex.P.11. So also, she was a witness to the seizure mahazar (Ex.P.12), whereby the accused’s cellphone (M.O.2), dhoti (M.O.3) and shirt (M.O.4) were seized.
5.14. Laxmi Narasimman-P.W.13 is the Doctor, who had conducted postmortem on the body of the deceased child. The postmortem certificate (Ex.P.13) and medical opinion (Ex.P.14) were marked through her. As per her testimony, the death of the child was owing to Asphyxia.
5.15. Valliammal-P.W.14 is the Scientific Officer and Analyst, who had issued the Viscera Report (Ex.P.15), in which she had opined that there was no poison in the fine vital organs of the deceased child. 5.16. Manisekaran-P.W.15 is the Forensic Expert, who had received the samples of the deceased’s sternum, SOC water and vaginal cotton swabs. According to his testimony, he had submitted the biological report (Ex.P.16) that diatom was not deducted in either the sternum or the SOC water. As per the analysis report (Ex.P.18), sternum was not deducted in the three vaginal cotton swabs. He had handed over the analysis report and the unexpended portions of items through a covering letter (Ex.P.18).
5.17. Suji Kamala-P.W.16 is the Headmistress of Vannivedu Mottur panchromatic Elementary School, through whom the deceased’s School record sheet (Ex.P.20) was marked, evidencing that she was born on 20.05.2006.
5.18. Mohanan-P.W.17 is the Special Sub-Inspector of Police, who had registered the FIR (Ex.P.21), based on the complaint of the VAO (P.W.4), on 12.05.2014 in Crime No.265 of 2014 under Section 174 Cr.P.C. He also deposed that after registration of the complaint, he had gone to P.W.10’s well and had witnessed the retrieval of the body of the deceased child. He also speaks about having seen the accused being brought to the Police Station on the same day.
5.19. Sivagami-P.W.18 is the Woman Constable, who had accompanied the body of the deceased to the hospital for conducting Postmortem.
5.20. Sundaresan-P.W.19 is the Special Sub-Inspector of Police, who had registered the FIR (Ex.P.22) initially on 11.05.2014 in Crime No.161 of 2014 under the caption “girl missing”.
5.21. Sivakumar-P.W.20 is the Head Constable, who had taken the accused to Vellore General Hospital for conducting the Potency test.
5.22. Sigamani-P.W.21 is the Inspector of Police, Thiruttani Police Station, who had conducted the initial investigation by preparing the rough sketch (Ex.P.23), inquest report (Ex.P.24) and recovered the dresses of the deceased child under M.O.5 to M.O.7.
5.23. Jawaharlal-P.W.22 is the Inspector of Police attached to the Arakkkonam Police Station, who had conducted the further investigation in Crime No.161 of 2014. After obtaining statements from various witnesses, he had registered the arrest of the accused, who was brought to him by P.W.12 (VAO) and recorded her oral confession. Based on the confession of the accused, he had recovered the accused’s Bajaj two wheeler (M.O.8) and the ear studs (M.O.1) from the Pawn Broker shop.
5.24. Duraipandian-P.W.23 is the Inspector of Police, who had conducted the final investigation and prepared the final report.
Examination of the accused as D.W1
6.1. The accused examined himself as D.W.1. In his testimony, he states that he knew the deceased, who used to come to his house and play with his children. According to him, when he heard the news of the deceased body lying in the well at about 09.00 A.M., he had joined the villagers and went there in his two wheeler and saw the body. He had implicated one Anjala, who had a previous enmity with him. According to him, the said Anjala (not examined) had indicated to the Police that if the accused is enquired, the truth will come out. Based on her submission, the Police had searched and recovered his cellphone and receipt through which he had pledged his own daughter’s jewels before P.W.11 and that one Siva, son of Narasimhan, was the person who had committed the murder of the deceased child. In his statement, he further deposed that the Police had beaten him up and obtained signatures on blank sheets and he has no involvement in the crime. 6.2. Siva-D.W.2 has testified that when he heard the news about the body being found in a well on 11.05.2014, he had gone to the place and saw the body and also signed in the observation mahazar. 6.3. The accused had also marked Exs.D.1 to D.4, which are notices sent by P.W.11/Pawn Broker to substantiate that he has been regularly pledging his own jewels before P.W.11.
7. The Trial Court, on the strength of the oral and documentary evidences before it, had recorded the guilt of the accused and had sentenced him to imprisonment, as detailed earlier.
Submission by the learned counsel appearing for the accused
8. The learned counsel appearing for the accused submitted that among the three circumstantial evidences put forth by the prosecution, none of the circumstances were substantially beyond reasonable doubt. He would submit that though the prosecution has examined P.W.2 and P.W.8 as witnesses, who claim to have last seen the accused and deceased together, P.W.2 had categorically stated that he had seen the accused from a long distance and had not identified the deceased. He also made reference to the evidence of P.W.10, who was the owner of the well where the body was found and submitted that P.W.10 had categorically stated that the accused was present in the scene of occurrence, whereas the VAO (P.W.12) claims that the accused produced himself before her at 08.00 A.M. itself and had given his voluntary confession statement. Pointing out to these discrepancies, the learned counsel submitted that the evidence of P.W.2 cannot be relied upon and that the extra judicial confession before P.W.12 is a weak piece of evidence. Insofar as the recovery of M.O.1 is concerned, he would state that the accused is always in the habit of pledging his own jewels before P.W.11 and relied on Exs.D1 to Ex.D4 to substantiate his stand and therefore, raised a doubt on the recovery of jewels. The learned counsel stated that since it is a case based on circumstantial evidence and when all the circumstances connected to the crime have not been properly established, the accused should have been acquitted on benefit of doubt, which the Trial Court had failed to appreciate. The learned counsel also submitted that initially when the deceased had gone missing, P.W.1 had given a complaint to the Police, which was recorded in Ex.P22-FIR in which there was no allegation that the accused had taken the deceased in his two wheeler. According to him, when P.W.8 had categorically informed his grandmother that the accused had taken his sister, P.W.1 would have certainly recorded such a statement in his complaint and in the absence of the same, the only inference that could be drawn is that the Police had, without any evidence, implicated the accused based on the oral complaint given by Anjala with whom he was inimically disposed.
Submission by the Learned APP
9. Per contra, the learned Additional Public Prosecutor strongly placed reliance on the evidence of P.W.8, who was playing along with the deceased and had also witnessed the accused taking the deceased in his two wheeler. Though P.W.8 was only seven years old, yet he had, with a lot of clarity, clearly implicated the accused taking away the child and thereafter, when the body was found, the only conclusive inference which could be drawn would be the guilt of the accused. He also placed reliance on the evidence of P.W.11 and submitted that the proof of the accused having pledged the deceased girl’s gold ornament on 11.05.2014 itself, when the child was taken away by the accused, would also be an important part of the link to the chain of circumstances. Since there were two clinching circumstances to record the guilt of the accused, his extra judicial confession before P.W.12 also gains significance and therefore, he submitted that the findings of the trial Court cannot be found fault with.
Analysis
10. We have given our anxious consideration to the submissions made and have perused the original records.
Prosecution had set forth their evidences based on four circumstances
11. This is a case which rests purely on circumstantial evidences. Before the Trial Court, the prosecution had set forth their evidences based on four circumstances, which are dealt with in the following manner.
A. Last Seen Theory
12. According to the prosecution, on 11.05.2014, P.W.2/ maternal uncle of the deceased and P.W.8/younger brother, had seen the deceased playing near a temple in their street. P.W.8 had categorically deposed that when he was playing with his sister and one Nila, the accused had come there in his two wheeler and offered to buy ice cream for the deceased and had taken away her in his two wheeler. P.W.2 also made a similar statement that he had seen the deceased playing near the temple and he had seen the accused from a distance riding a two wheeler along with the same girl and that P.W.8 had later informed that it was the accused who had taken away the deceased. P.W.1, who is the grandfather of the deceased confirms that before he had left for his work, he had seen the deceased and P.W.8 playing outside and when he returned back in the afternoon, the deceased was missing.
13. The fact that the deceased and P.W.8 were playing outside the house near the temple stands substantially proved by the prosecution through the evidences of P.W.1, P.W.2 and P.W.8. P.W.8’s evidence in this regard is very crucial, wherein he, in categorical terms, had stated about the accused offering to buy ice cream for the deceased and taking her in a two wheeler. He had gone one step further and stated that when his grandmother had come back home and searched for the child, he had informed her about the accused taking away the deceased in a two wheeler. The statement of P.W.8, though a child witness, is in very clear terms and we are of the view that his statement, which is very natural and who is the only person who may have had the first hand information about the accused taking away the child, is reliable.
14. During the course of cross examination, when it was suggested to P.W.8, he asserted that it was the accused who had taken the deceased in his two wheeler in the afternoon and thereafter, she did not return home. The relevant portion of his testimony during the chief and cross examinations are as follows:-
“ …………. “
The aforesaid statements of P.W.8 are self-explanatory, which imposes confidence in us to render it as wholly reliable.
Evidentiary value of a child witness is concerned
15. Insofar as the evidentiary value of a child witness is concerned, Section 118 of the Indian Evidence Act, 1872 envisages that all persons shall be competent to testify unless the Court is of a contrary view. As long as a child witness is found to be competent to depose i.e., capable of understanding the question and able to give rational answers, the testimony of such witness can be considered as evidence, in terms of Section 118 of the Indian Evidence Act, irrespective of their tender age or absence of any oath, as held by the Hon’ble Supreme Court in the case of Dattu Ramrao Sakhare and Others Vs. State of Maharashtra reported in (1997) 5 SCC 341.
16. Likewise, in the case of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat reported in (2004) 1 SCC 64, the Hon’ble Supreme Court had observed that, though child witnesses are considered as dangerous witnesses, as they are pliable and liable to be influenced easily, shaken and moulded, yet it is an accepted norm that if after careful scrutiny, their testimony is found to inspire confidence and truthfulness, then there is no obstacle to accept the evidence of such child witness.
17. In the instant case, P.W.8, who is the brother of the deceased, was 10 years old studying in Vth Standard. The Trial Court had subjected him to preliminary questioning to test his mental capability and after assuring the same, had proceeded to examine him. We have analysed the entire evidence of P.W.8, as recorded by us herein above and are of the view that this child witness was not subjected to any form of tutoring, but rather his statements appear to be natural and acceptable, thereby imposing confidence on us.
Defense did not prove its case
18. The defense had attempted to prove his innocence by stating that he was falsely implicated by one Anjala and that he had no connection whatsoever to the incident. The said Anjala has not been examined as a witness by the prosecution or the defense. There are no other material evidences, apart from the statement of D.W.1 to prove such a statement. Even when the incriminating circumstances were read over and questioned under Section 313 Cr.P.C., the accused had failed to put forth his defense at the relevant point of time. Having failed to do so, it would not be appropriate to place reliance on the sole testimony of D.W.1. As such, we are fully satisfied with the reliance placed on the evidence of P.W.8 and thus, the most important link in the chain of circumstance, namely last seen theory by P.W.8, stands proved.
19. To corroborate P.W.8’s statement, P.W.2/maternal uncle of the deceased child also claims that he had seen the deceased playing with P.W.8 and had seen the accused driving the two wheeler with some girl whose identity was revealed to him by P.W.8 himself. When the evidences of P.W.2 and P.W.8 are cogently read together, we have no difficulty in upholding the circumstance of last seen theory.
B. Recovery of Jewels
20. The second main link of circumstance put forth by the prosecution is the recovery of the jewels from P.W.11, who is a pawn broker. As per the evidence of P.W.11, the accused had pledged the deceased’s ear studs on 11.05.2014 itself. The accused is well known to P.W.11, since he has stated that the accused, along with his wife, used to pledge their gold jewels with P.W.11 on earlier occasions. Ex.P.8, which is the receipt of the pledged jewels, was also recovered from the accused. Based on such recovery, the jewels were seized from the pawn shop of P.W.11. The jewels were also identified by P.W.2.
21. The evidence before us shows that the deceased and P.W.8 had come to the house of P.W.1 and P.W.2 for their summer vacation from 01.05.2014 onwards and for the past ten days, the children were living there. P.W.2, being the maternal uncle of the deceased, would have been well accustomed with the jewels which the deceased were wearing when she was in their house. During the course of investigation, he had also identified that these jewels belong to the deceased. The accused had produced four notices Exs.D.1 to Ex.D.4, which are letters sent by P.W.11 to the accused and his wife for retrieving their jewels, as well as for auctioning the jewels. These evidences may, at the most, only establish that the accused and his wife had earlier pledged some jewels before P.W.11 and nothing more. Exs.D1 to Ex.D4 does not, in any way, disprove the claim of the prosecution that the accused had pledged the jewels of the deceased with P.W.11 under Ex.P.8 receipt. It is also not the case of the defense that Ex.P.8 receipt does not correlate to the jewels of the deceased. There are no other evidences both oral and documentary to discredit the statement of P.W.11 or Ex.P.8.
22. In these circumstances, we are of the affirmed view that the prosecution had clearly proved the recovery and established this overt act of the accused in having pledged the jewels with P.W.11. Thus, the second vital link to the chain of circumstances, namely recovery, stands substantially proved.
C. Extra Judicial Confession
23. The third and final circumstance is the extra judicial confession of the accused before P.W.12. The learned counsel for the accused would submit that since P.W.10 had clearly stated that the accused was present near the well when the body was retrieved at about 11.00 A.M., the claim of the prosecution that he had voluntarily given a confession statement before P.W.12 is totally contradictory. The extra judicial confession of an accused by itself is a very weak piece of evidence. Even otherwise, the contradiction pointed out by the learned counsel for the accused is a very minor one, which may not go to the root of the matter. The accused claims that he was present when the body was retrieved, at which point of time, he was arrested by the Police. Even assuming that the contradiction between the evidences of P.W.10 and P.W.12 is not trustworthy, the only conclusion that can be arrived is with regard to the minor discrepancy in the place of arrest of the accused, but will not have any bearing with regard to his involvement in the actual crime, for which he was charged, more particularly when the other two circumstances of last seen theory and recovery of the stolen jewels have been established by the prosecution.
D. Medical Evidence
24. P.W.13 is the Doctor, who conducted postmortem of the deceased. From her statement, which was recorded in the postmortem certificate (Ex.P.13), it is seen that there were blood stains in the underwear of the deceased and the place of wearing ear studs in both the ears were torn. There were Venus Engorgement in the blood veins to the heart; abrasions in her right thigh measuring 1 x 1 cms; her genital area was swollen with blood stains; there was no blood in her heart; her hymen was not intact. In her opinion, P.W.13 has stated that the deceased child has been subjected to sexual intercourse and that the cause of death is due to asphyxia.
Conclusion
25. We had already recorded the guilt of the accused, based on the circumstantial evidence touching upon the last seen theory and recovery of the stolen jewels. The medical evidences also reveal that the deceased child had been a victim of penetrative sexual assault, apart from being smothered to death. Thus, the charges against the accused for the offences under Section 302 IPC, as well as under POCSO Act stand proved.
26. The accused was last seen taking the deceased child in his two wheeler and thereafter, the body was found in the well of P.W.10. Apparently, after committing the crime, the accused had attempted to conceal the evidence and therefore, the charge against him for the offence under Section 201 IPC also stands proved.
27. The Trial Court had properly appreciated all the oral and documentary evidences against the accused and had recorded his guilt and sentenced him to life imprisonment, apart from the other sentences. We do not find any valid grounds or reasons to interfere with the said recordings and thus, the judgment of the Trial Court does not warrant interference.
28. In the result, there are no merits in the Criminal Appeal and accordingly, the same stands dismissed.
Party
Karthi @ Karthikeyan …Appellant Vs. The State, rep. by Inspector of Police, Arakonam Taluk Police Station, Arakonam, Vellore District. …Respondent, dated 19th February 2025 , cited Crl.A.No.452 of 2019 – Coram:-In The High Court Of Judicature At Madras The Honourable Mr.Justice M.S.Ramesh And The Honourable Mr.Justice N.Senthilkumar
