Balaji vs State Rep.By Insp.Of Police

of the accused No.2 who was ten years old on 23rd 2

October, 1999, when the incident is said to have

occurred.

2. The second accused in the trial, Dhanalakshmi,

is the wife of the deceased, Chelliah Naicker. The

first accused is the nephew of Chelliah Naicker.

According to the prosecution case, the first

accused and the second accused developed an illicit

relationship. The first accused would visit the

house of the deceased carrying liquour with him

which he gave to the deceased, and, thereafter,

indulge in illicit intimacy with the second

accused. PW.2, Sundari, referred to hereinabove,

is the child of the second accused and the

deceased. At the time of the incident, the

deceased and the first accused and Sundari were

residing in a hut belonging to PW.4 at Rajiv Nagar,

Tuticorin. According to the prosecution, on 23rd

October, 1999, the first accused came to the house

of the deceased along with a bottle of liquour as 3

usual and handed over the same to the deceased.

Thereafter, after having illicit relations with

each other, both the accused decided to do away

with the deceased and in furtherance of their

object they took a nylon rope and strangulated the

deceased. Immediately, thereafter, they dug a hole

in the floor of the hut and buried the dead body in

the said hole. It is the prosecution case that the

entire incident had been witnessed by Sundari, who

was threatened by the accused that if she revealed

the occurrence to anybody, she would have to face

dire consequences. One Papammal, who was examined

as PW.3, is also alleged to have witnessed the

digging of the hole by the accused persons and on

being questioned, the accused persons are said to

have informed him that they had killed the deceased

as he was a continuous menace for them.

3. It appears that on 3rd November, 1999, PW.1,

the father of the deceased came over to the house 4

of the accused No.2 and asked about his son's

whereabouts from PW.2, Sundari. It also appears

that Sundari narrated the entire incident to PW.1

and also showed him the place where the deceased

was buried. Immediately thereafter, PW.1 and PW.2

went to Muthaipuram Police Station and narrated the

entire occurrence to the Sub-Inspector of Police,

PW.13, and the same was reduced into writing and an

FIR was prepared registering a case against the

accused persons under Section 302 IPC. Copies of

the same were sent to the Judicial Magistrate

No.II, Tuticorin, the Tahsildar, Tuticorin and to

the higher police officials.

4. On receipt of the aforesaid information, PW.16,

the Inspector of Police attached to Muthaipuram

Police Station, went to the place of occurrence at

12.30 a.m. and deployed police security at the

place of occurrence. He returned to the spot at

6.00 a.m. on 4th November, 1999 and with the help of 5

PW.6, exhumed the body of the deceased in the

presence of witnesses and Panchayatars. An inquest

over the dead body was conducted by the Tahsildar

and since the body had decomposed, on requisition,

PW.7, the Doctor conducted post-mortem on the

decomposed body. From the post-mortem report it

appears that the Doctor was of the opinion that the

deceased had died on account of man-handling and

throttling and that he must have died 10 to 15 days

prior to the date of autopsy. The skull of the

dead body was also subjected to superimposition

test by the Forensic Sciences department at Chennai

and on examination of the bones and the skull, the

opinion was that the skull could very well have

belonged to the male individual, whose photograph

was shown. On completion of investigation, final

report was filed and the case was committed to the

Court of Sessions, which, relying on the evidence

of PW.2, found both the accused guilty and

sentenced them to life imprisonment. 6

5. The said judgment of conviction and sentence

was challenged by the appellants in

Crl.A.(MD)No.858 of 2004 which, as indicated

hereinbefore, was disposed of on 22nd February, 2007

by the High Court by confirming the conviction and

sentence awarded to the accused persons.

6. Of the two accused, the present appeal has been

preferred only by accused No.1, Balaji. The main

challenge to the judgment of the trial court was

with regard to the acceptance of the evidence of

PW.2, Sundari, who was ten years old at the time of

occurrence and 14 years old when she had deposed

before the trial court.

7. Learned counsel appearing for the appellant

contended that the trial court should have

exercised great care and caution in considering the 7

evidence of PW.2, since the occurrence had taken

place in the middle of the night and even after

having allegedly witnessed the entire occurrence,

she did not speak to anybody about the murder of

her father by the accused till PW.1, her grand-

father, came to the house of the deceased on 3rd

November, 1999. Learned counsel urged that it was

difficult to accept that for 10 days PW.2 would

have remained silent and would not have informed

anybody about the incident, particularly, when the

body of her father was buried in the same house in

which they had been residing.

8. It was also submitted on behalf of the accused

that at the relevant time the accused No.2, along

with PW.2, was staying with DW.1, the brother of

the second accused, at Kattunaickanatti and were

not residing at Rajiv Nagar with the deceased, as

alleged by the prosecution. Accordingly, neither

the accused No.2 nor PW.2 were there in the place 8

of occurrence on 23rd October, 1999 and the evidence

of PW.2 was, therefore, liable to be rejected.

Learned counsel also urged that the trial court had

wrongly placed reliance on the evidence of PW.3,

although he had turned hostile.

9. Learned counsel also urged that the High Court

affirmed the judgment of the Trial Court mainly on

the evidence of PW.2, ignoring the fact that the

First Information Report was filed after a period

of 10 days within which time a plausible story was

sought to be made out relying on the sole evidence

of PW.2, who was only ten years old at the time of

the incident. Learned counsel submitted that the

High Court merely followed the reasoning of the

Trial Court without considering the matter on its

own merits.

10. Learned counsel submitted that except for the

evidence of PW.2, whose testimony was required to

be treated with caution, there was nothing else in 9

the entire evidence to connect the appellant with

the alleged offence.

11. On behalf of the State, Mr. R. Nedumaran,

learned Advocate, while supporting the judgment of

the trial Court, which was subsequently affirmed by

the High Court, contended that the evidence of PW.2

acquires a great deal of relevance, since apart

from the accused, no one else could have had

knowledge either of the manner in which the

deceased was killed or that he was buried under the

floor of the hut in which they were living.

Learned counsel submitted that it is on account of

the narration of the event by PW.2 to PW.1, the

father of the deceased, that the investigating

authorities were informed and they came and exhumed

the body of the deceased.

12. Mr. Nedumaran submitted that the aforesaid fact

was sufficient to establish the truthfulness of the

evidence of PW.2, notwithstanding her age, and such 10

fact had been duly noticed both by the Trial Court

and the High Court.

13. Mr. Nedumaran submitted that in the facts and

circumstances, as indicated hereinabove, this is

not a case which called for interference by this

Court.

14. We have carefully considered the submissions

made on behalf of the appellant and the State and

we are convinced that no fault can be found either

with the judgment of the Trial Court or the High

Court in convicting the appellant for the offence

with which he had been charged.

15. Having regard to the fact that the discovery of

the body was made at the instance of PW.2. Sundari,

the child witness, and the post-mortem conducted on

the dead body was in consonance with the case made

out by the prosecution, viz., that the deceased had

been strangulated and throttled to death, there can 11

be no reason to disbelieve Sundari's evidence which

has withstood the test of cross-examination.

16. There is one more aspect of the matter which

also bears consideration. It cannot be forgotten

that the accused no.2 is Sundari's mother and no

reason is forthcoming as to why Sundari should

implicate the accused no.2 in the murder of her

father. Even the attempt made on behalf of the

accused to discredit the evidence of PW.2 by

asserting that she was actually living at

Kattunaickepatti during the relevant period was

considered and rejected both by the Trial Court and

the High Court, as both the Courts chose to rely on

the evidence of PW.2 that only after the death of

her father she was taken to Kattunaickepatti and

from there to Madras.

17. In view of the above, we are in agreement with

Mr. Nedumaran that no interference is warranted 12

with the judgment of the Trial Court and the High

Court, convicting the appellant herein.

18. The appeal is, accordingly, dismissed.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH)

................................................J. (R.M. LODHA)

New Delhi Dated: December 2, 2009