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2019 Supreme(Mad) 2802
IN THE HIGH COURT OF MADRAS
M.M. Sundresh, M. Nirmal Kumar, JJ.
Karunamoorthy - Appellants
Vs.
State - Respondent
Criminal Appeal No. 417 of 2017
Decided On : 08-07-2019
For the Appellant : K. Gandhi Kumar
For the Respondents: R. Prathap Kumar, Additional Public Prosecutor
Headnote:
Indian Penal Code,1860 - Sections 449, 302 and 506(i) – Criminal Procedure Code,1973 - Section 164 – Investigation – Murder - Appellant is cousin brother of one whose wife is deceased in this case - Appellant used to call upon deceased and chat with her. husband of deceased stayed at Chennai and worked as Supplier in Vijay Hotel - During holidays and other festivals he used to visit his family - Taking advantage of his absence appellant had developed illegal intimacy with the deceased which was objected by villagers and her husband about when deceased and her two daughters were sleeping appellant came through back side of house of the deceased and called her to have physical relationship deceased refused and asked appellant to leave place - Thereafter with an intention to murder appellant had forcibly trespassed into the house of deceased and slapped her and pushed her by neck thereby she fainted and fell down - Sensing that she was breathing, appellant took the pillow and smothered her to death - This was witnessed by daughter of deceased - She questioned appellant about act appellant had threatened said to keep quite otherwise she would also meet same fate –Held, Case rest on evidence child witness - It is to be seen whether evidence is reliable one - There is no likelihood of being tutored - This precaution is necessary because the child witnesses are amenable to tutoring and often live in world of make-believe - Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaped and but it is also an accepted norm that after careful scrutiny of their evidence Court comes to conclusion that there is truth in there is no obstacle in way of accepting evidence child witness - In this case is naturally having animosity against appellant since appellant and deceased were having illegal relationship for quite sometime has seen appellant and deceased talking with each other often which was objected by relatives of deceased - Further there was animosity with regard to appellants sister getting in marriage with deceased husband family illegal relationship has been known to most of villagers who are all repressive Courts have laid down evidence must find adequate corroboration before it is relied on It is more a rule of practical wisdom than of law these cases Versus State of Madhya Pradesh Baby State of Kerala Raja Ram Versus State of Bihar Versus State of Maharashtra) - Thus it cannot be safe to rely on evidence alone without corroboration to sustain conviction contradiction and motivated one and serious doubt arises in manner witnessed the occurrence in darkness and did not inform her grandfather Krishnan who was very much available in house and also not informed any of neighbor - Admittedly houses are a row houses there is inordinate delay in informing about occurrence after seven hours which is not a normal conduct- Further appellants relationship with mother had caused animus against appellant fueled by her paternal relatives and hence there is every possibility being tutored - Appeal allowed
JUDGMENT :
M. Nirmal Kumar, J.
1. The appellant, who stood charged and convicted for the offence under Sections 449, 302 and 506(i) of IPC in S.C. No. 417 of 2017 dated 17.05.2017 on the file of the Mahila Sessions Court, Cuddalore, having been arrayed as an accused has filed the above Criminal Appeal.
2. Brief Facts:
2.1. The appellant is the cousin brother of one Prakash, whose wife Selvarani is the deceased in this case. The appellant used to call upon the deceased Selvarani and chat with her. The husband of the deceased stayed at Chennai and worked as Supplier in Vijay Hotel. During holidays and other festivals, he used to visit his family. Taking advantage of his absence, the appellant had developed illegal intimacy with the deceased Selvarani, which was objected by the villagers and her husband Prakash. On 18.04.2005 at about 11.00 p.m when the deceased Selvarani and her two daughters were sleeping, the appellant came through the back side of the house of the deceased and called her to have physical relationship. The deceased Selvarani refused and asked the appellant to leave the place. Thereafter with an intention to murder, the appellant had forcibly trespassed into the house of the deceased and slapped her and pushed her by the neck, thereby she fainted and fell down. Sensing that she was breathing, appellant took the pillow and smothered her to death. This was witnessed by Priyadharshini, daughter of the deceased Selvarani. She questioned the appellant about the act, the appellant had threatened the said Priyadharshini [PW 2] to keep quite otherwise she would also meet the same fate. On conformation that the deceased had died, the appellant took the pillow and her mobile phone and ran away through the back door of the deceased house.
2.2. On 19.04.2015 at 06.00 a.m, when Priyadharshini [PW 2] woke up her mother, she saw the blood oozing from the deceased mouth and she called her relatives. They came and sprinkled water on the face of the deceased, unable to see any movement, they informed the deceased brother [PW 3] and his son [PW 1], who are residing at Eraiyur Village a far of place. Thereafter, PW 1 & PW 3 came to the house of the deceased at about 09.00 a.m. On confirming the death of Selvarani, PW 1 went to respondent police and lodged a complaint [Ex. P1] at about 12.00 noon on 19.04.2015. On receipt of the same, PW 9 registered a case in Crime No. 31 of 2015 [Ex. 16].
2.3. The appellant and the deceased Selvarani are relatives. Taking advantage of the absence of the deceased husband Prakash, both of them had developed illegal intimacy and had physical relationship for quite some time, which was objected by the relatives of the deceased and the villagers.
3. In support of the prosecution, PW. 1 to PW. 10 were examined and Ex. P1 to Ex. P23 were marked and 6 materials objects were marked. On the side of the defence one witness/DW 1 has been examined and marked Ex. D1 to Ex. D7.
3.1. PW 1 is the author of the complaint [Ex. P1] dated 19.04.2015. The occurrence is said to have taken place on 18.04.2015 at about 11.00 p.m. PW 2 is the daughter of the deceased and she is the only eye witness in this case. PW 3 is the brother of the deceased, who had accompanied PW 1.
3.2. PW 4, the Aunt of the deceased reached the scene of occurrence by hearing the cry sound in the deceased house on 19.04.2015.
3.3. PW 5, the learned Judicial Magistrate No. II, Virudhachalam recorded statement under Section 164 Cr.P.C of PW 1 to PW 4 and three others and the same were marked under Ex. P2 to Ex. P8.
3.4. PW 6, the Doctor conducted postmortem on the body of the deceased and issued the postmortem report as Ex. P12.
3.5. PW 7, the Village Administrative Officer, Thittakudi, the witness for the observation mahazar [Ex. P13] drawn by PW 10 in the scene of occurrence.
3.6. PW 8, the Village Administrative Officer, Avinangudi is the witness for the arrest and confession of the appellant on 21.04.2015 at about 07.00 a.m. The admitted portion of the conf
