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2021 Supreme(Mad) 770
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, V. SIVAGNANAM, JJ.
Ashok Kumar - Appellant
Versus
State Represented by the Inspector of Police, Kanchipuram - Respondent
R.T. No. 1 of 2019 & Crl. A. No. 31 of 2021
Decided On : 18-03-2021
Advocate Appeared:
For the Appellant :John Sathyan, Advocate.
For the Respondent: K. Prabakar, Addl. Public Prosecutor.
Point of Law: In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning
Headnote:
POCSO Act, 2012- Section 6- Indian Penal Code, 1860 - Section 302 –Murder and Rape of Minor girl – Circumstantial Evidence – Victim died of shock and hemorrhage due to cut injury of neck with evidence suggestive of recent forceful vaginal penetration
Finding of the Court:
recovery of the chappals (M.O.1) in the entrance to the house of “X”, even if accepted, cannot, by itself, lead to the inference that the appellant was the perpetrator of the ghastly offence, inasmuch as, the appellant was found talking with “X” at 5.30 p.m. in broad day light by Anjalai (P.W.4). Therefore, the appellant could have even left the chappals then, as villagers are used to walking barefoot without being finicky on such aspects - Court is unable to confirm the conviction of the appellant of the offence under Section 6 of the POCSO Act and Section 302 @ 376A IPC and consequently, the sentences therefor. Further, this Court is saddened to note that the investigation of the case of the murder of a young girl has been done very shabbily
Result: Petition allowed
JUDGMENT :
P.N. PRAKASH, J.
(Prayer: R.T. No.1 of 2019 Referred Trial under Section 366 Cr.P.C. on the judgment and order dated 15.02.2019 passed in Special Case No.13 of 2018 on the file of the Mahila Court, Chengalpattu.
Crl. A. No.31 of 2021 Criminal Appeal filed under Section 374(2) Cr.P.C. seeking to set aside the judgment of conviction and sentence dated 15.02.2019 passed in Special Case No.13 of 2018 on the file of the Mahila Court, Chengalpattu.)
1. For the sake of anonymity, the deceased in this case, who is a minor girl, is referred to as “X”.
2. Shorn off unnecessary frills, the germane facts leading to the institution of the referred trial and criminal appeal run thus:
2.1 “X” was 13 years old when her life ebbed out. She was the daughter of Malar (P.W.1) and Munusamy. Apart from “X”, Malar (P.W.1) has a daughter, Divya (P.W.2) and a son Arul Kumar (P.W.3) and both were elder to “X”. Divya (P.W.2) got married to one Velmurugan, through whom, she has a child named Koteeswari, who was around three years old at the time of the incident. All of them were living together under one roof, viz., Door No.2/316, Lenin Nagar 1st Street, Alathur Village, Kancheepuram.
2.2 “X” was studying in IX standard in the Government Higher Secondary School, Payyanur and according to the school records (Ex.P.22), her date of birth is 11.11.2003 [See the evidence of Kamakshi (P.W.23), Headmistress of the school].
2.3 The appellant herein also hails from the same village, but, is a resident of Gangai Amman Koil Street nearby and was well-known to the family of “X”.
2.4 The incident in this case took place on 23.07.2017 (Sunday). Malar (P.W.1) was working in Chettinad Hospitals and on 23.07.2017, she went for work, but, decided to return home early as she was unwell. Divya (P.W.2), along with her child Koteeswari, went with her brother Arul Kumar (P.W.3) in the latter’s motorcycle, to consult an astrologer in the evening of 23.07.2017. After consultation, they received information that Malar (P.W.1) was waiting in the Thiruporur bus stand and so, they picked her up in the motorcycle and the threesome returned home around 7.30 p.m.
2.5 It is the assertion of the trio that while they were nearing their house, they saw the appellant hurriedly running in a suspicious manner through a pathway that runs adjacent to their house; when they went inside their house, they were shocked to find “X” lying dead on the floor in a pool of blood with her dress dishevelled; they raised a hue and cry which drew the attention of the neighbours.
2.6 On a complaint (Ex.P.1) given by Malar (P.W.1) which was written by Sasi (P.W.9), Ramesh (P.W.24), Inspector of Police, Thiruporur Police Station, registered a case in Cr.No.394 of 2017 on 23.07.2017 at 8.30 p.m. for the offences under Section 6 of the POCSO Act, 2012 and Section 302 IPC against the appellant and prepared the printed FIR (Ex.P.23).
2.7 The complaint (Ex.P.1) and the printed FIR (Ex.P.23) reached the jurisdictional Court at 2.30 p.m. on 24.07.2017, as could be seen from the endorsement of the judicial officer thereon.
2.8 The Investigating Officer (P.W.24) took up the investigation of the case and went to the place of occurrence. On his directions, Saravanakumar (P.W.17) took photographs at the place of occurrence which were marked as Ex.P.15 and the compact disc containing 12 photographs was marked as M.O.14.
2.9 The Investigating Officer (P.W.24) requisitioned the services of the mobile unit of the Tamil Nadu Forensic Sciences Department (for short “the TNFSD”) and accordingly, Vijayalakshmi (P.W.15), Assistant Director, TNFSD, reached the place of occurrence at 10 p.m. on 23.07.2017.
2.10 The Investigating Officer (P.W.24) prepared the observation mahazar (Ex.P.3) and rough sketch (Ex.P.24) in the presence of Murugesan (P.W.6) and Dhanasekar (P.W.10) at 9.30 p.m.
2.11 From the place of occurrence, the Investigat
