Madras High Court
Adthikeshawaperumal vs State Represented By on 1 December, 2021
Criminal Appeal No.528 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Criminal Appeal No.528 of 2018
Adthikeshawaperumal
S/o.Panchamurthi .. Appellant
Vs.
State represented by
The Inspector of Police,
Mangalapettai Police Station,
Cuddalore District.
Crime No.58 of 2016 .. Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 21.12.2016 passed in S.C.No.143 of
2016 on the file of Principal Sessions Judge (Mahalir Court), Cuddalore.
For Appellant : Mr.B.Krishnamani Appukutti
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
1/14
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Criminal Appeal No.528 of 2018
JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 21.12.2016 passed by the learned Principal
Sessions Judge (Mahalir Court), Cuddalore, in S.C.No.143 of 2016.
2. The prosecution story runs thus:
2.1. The deceased in this case is Akash Varma, who was 4 years old at
the time of his death. Akash Varma was the son of Vaithiyalingam [PW-1]
and Rajalakshmi [PW-2]. The family was living in North Street,
Ramanathapuram, Virudhachalam. Vaithiyalingam [PW-1] and Rajalakshmi
[PW-2] were agricultural workers. The appellant was the neighbour of
Vaithiyalingam [PW-1]. In the evening of 07.05.2016, Vaithiyalingam [PW-
1] did not find his son in the house and hence, he started searching for him.
The news spread that Akash Varma was missing and therefore, along with
Vaithiyalingam [PW-1], Thirumal [PW-3], Anjalai [PW-4], Muthulingam
[PW-5] and Vasantha [PW-6] and other villagers started searching for the
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Criminal Appeal No.528 of 2018
child in the village.
2.2. Vaithiyalingam [PW-1] and other villagers found the appellant in
a very suspicious circumstance and when they started questioning him, he
was not speaking coherently. This aroused suspicion in their minds and
therefore, they went to his house and started searching. During the search,
Vaithiyalingam [PW-1] and other villagers found a T-shirt [MO-4] of Akash
Varma in the pooja room of the appellant's house and therefore, they
intensified the search. Vaithiyalingam [PW-1] and other villagers found a
stainless vessel, over which, a white dhoti [MO-2] was spread, over which,
the frame of a fan bearing the photograph of Ms.J.Jayalalithaa, the then
Chief Minister of Tamil Nadu [MO-3] was found. They opened the vessel
and inside the vessel, they found the body of Akash Varma. Therefore,
Vaithiyalingam [PW-1] and others immediately took the child to the
Government Hospital, Virudhachalam, where Akash Varma was examined
by Dr.Govindamurugan [PW-8], who, in his evidence as well in the Accident
Register [Ex.P4], has noted as under:
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Criminal Appeal No.528 of 2018
',d;W ,ut[ Rkhh; 7/30 kzpastpy; FHe;ijia
fhztpy;iy vd;W njo bfhz;oUe;j nghJ mtuJ
tPl;od; mUnf ,Ue;j kw;bwhU tPl;oy; Ftisapy;
FHe;ij mirt[ mw;;w epiyapy; ,Ue;jjhf cld;
te;jth; bjhptpj;jhh;/ '
2.3. While Akash Varma was taken to the Government Hospital,
Cuddalore, Vaithiyalingam [PW-1] felt that he had died and therefore, Akash
Varma was brought back to the Government Hospital, Virudhachalam,
where the body of Akash Varma was kept in the mortuary. Thereafter,
Vaithiyalingam [PW-1] gave a written complaint [Ex.P1] narrating all these
facts, based on which Paneerselvam [PW-11], Sub-Inspector of Police,
registered a case in Crime No.58 of 2016 for the offences u/s.394, 302 and
201 IPC at 06.00 hours on 08.05.2016 and prepared the printed First
Information Report [Ex.P11], which reached the jurisdictional Magistrate on
the same day.
2.4. Investigation of the case was taken over by Tamilmaaran [PW-
12], Inspector of Police (hereinafter referred to as 'the Investigating Officer'),
who went to the place of occurrence and prepared the observation mahazar
[Ex.P9] and rough sketch [Exs.P12 and P13]. From the place of occurrence,
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Criminal Appeal No.528 of 2018
the Investigating Officer [PW-12] seized the following items under the cover
of a mahazar [Ex.P10]:
(i) a round stainless vessel [MO-1]; (ii) a white dhoti [MO-2]; and (iii) a
table fan frame [MO-3].
2.5. The Investigating Officer [PW-12] went to the Government
Hospital, Virudhachalam and conducted inquest over the body of Akash
Varma and the inquest report was marked as Ex.P14. Thereafter,
Dr.Rajkumar [PW-9], performed autopsy on the body of Akash Varma and
issued the postmortem certificate [Ex.P8], after receiving the Viscera Report
[Ex.P6]. The injuries around the neck showing strangulation were found
during postmortem and they have been recorded in the postmortem
certificate [Ex.P8]. Dr.Rajkumar [PW-9] gave his final opinion as the cause
of death, which is as under:
'Final opinion : The deceased would appear to have died of
asphyxia due to strangulation and fracture of cervical spine.'
2.6. The appellant was arrested by the Investigating Officer [PW-12]
on 12.05.2016 and based on his confession, the police recovered a silver
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Criminal Appeal No.528 of 2018
waist band [MO-5] that was worn by Akash Varma.
2.7. After examining witnesses and collecting the various reports, the
Investigating Officer [PW-12] completed the investigation and filed a final
report in P.R.C.No.7 of 2016 in the Court of Judicial Magistrate II,
Virudhachalam, for the offences u/s.369, 379, 302 and 201 IPC, against the
appellant.
2.8. On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.143 of 2016 and was made over to the Mahila Court
(Sessions Level), Cuddalore, for trial. The trial Court framed charges
u/s.369, 379, 302 and 201 IPC against the appellant and when questioned,
the appellant pleaded 'not guilty'.
2.9. To prove the case, the prosecution examined 12 witnesses and
marked 15 exhibits and 5 material objects. When the appellant was
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Criminal Appeal No.528 of 2018
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against him, he denied the same, but, stated that he returned from work only
at 07.00 p.m. on that day and did not know how the body of Akash Varma
came to his house. None was examined from the side of the appellant nor
any exhibit marked.
2.10. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 21.12.2016 in S.C.No.143 of
2016, convicted and sentenced the appellant as follows :
Provision under
Sentence
which convicted
Section 369 IPC 5 years rigorous imprisonment and fine of
Rs.500/-, in default, 6 months rigorous
imprisonment.
Section 379 IPC 2 years rigorous imprisonment.
Section 302 IPC Life imprisonment and fine of Rs.1,000/-, in
default, 1 year rigorous imprisonment.
Section 201 IPC 5 years rigorous imprisonment and fine of
Rs.500/-, in default, 6 months rigorous
imprisonment.
The aforesaid sentences were ordered to run concurrently.
2.11. Challenging the aforesaid conviction and sentences, the
appellant/accused filed the present appeal.
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Criminal Appeal No.528 of 2018
3. Heard Mr.B.Krishnamani Appukutti, learned counsel for the
appellant and Mr.M.Babu Muthu Meeran, learned Additional Public
Prosecutor, appearing for the respondent State.
4. The prosecution has proved beyond a peradventure the following
facts:
(i) Akash Varma was aged 4 years at the time of his death and he was the
son of Vaithiyalingam [PW-1] and Rajalakshmi [PW-2] and the family
was living in North Street, Ramanathapuram, Virudhachalam;
(ii)the appellant was also living in the same street;
(iii)Akash Varma died on 07.05.2016 and the death was homicidal.
5. The short point that falls for consideration is, was the appellant
involved in the offence.
6. The prosecution case rests on the testimonies of Vaithiyalingam
[PW-1], Rajalakshmi [PW-2], Thirumal [PW-3], Anjalai [PW-4],
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Criminal Appeal No.528 of 2018
Muthulingam [PW-5] and Vasantha [PW-6].
7. Vaithiyalingam [PW-1], in his testimony, has stated that the
appellant was his neighbour, who used to involve himself in small thefts for
satisfying his liquor addiction; the appellant was involved in the murder of
his father and was in jail for 1½ years and later, released; the appellant used
to be fed by everyone in the village now and then; on 07.05.2016, at 04.00
p.m., Akash Varma was playing in front of the house of the appellant;
thereafter, Akash Varma did not return home; Muthulingam [PW-5], Vadivel
[not examined] and Vasantha [PW-6] told him [PW-1] that they saw the
appellant carrying Akash Varma and going; therefore, all of them started
searching for Akash Varma; they confronted the appellant in the village and
when he was questioned, he was giving conflicting versions; therefore, they
went to his house and started searching for Akash Varma; during the search,
they found the T.shirt [MO-4] of Akash Varma; near the pooja room, they
found a stainless vessel [Ftis] [MO-1], which was closed with a white
dhoti, over which, a frame of a table fan was placed; when they opened the
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Criminal Appeal No.528 of 2018
dhoti, they found Akash Varma inside the vessel; he [PW-1] and others
rushed Akash Varma to the Government Hospital, Virudhachalam, where
Akash Varma was examined by the doctor and was referred for better
treatment to the Government Hospital, Cuddalore; he [PW-1] has stated in
the complaint that the child was wearing a silver waist band and that was
missing.
8. To a very large extent, the testimony of Vaithiyalingam [PW-1] has
been corroborated by Rajalakshmi [PW-2], Thirumal [PW-3], Anjalai [PW-
4], Muthulingam [PW-5] and Vasantha [PW-6]. Muthulingam [PW-5] and
Vasantha [PW-6] have further stated that they had seen the appellant
carrying Akash Varma and going.
9. The learned counsel for the appellant contended that had these
witnesses really seen the appellant carrying Akash Varma with him that
would have been mentioned in the complaint [Ex.P1]. The learned counsel
drew the attention of this Court to the contradiction between Section 161(3)
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Criminal Appeal No.528 of 2018
Cr.P.C. statement and the testimony of Vaithiyalingam [PW-1], inasmuch as
Vaithiyalingam [PW-1] had not stated to the police that Muthulingam [PW-
5] and Vasantha [PW-6] had seen Akash Varma being carried by the
appellant. The learned counsel also brought to the notice of this Court the
copy of the Accident Register [Ex.P4] wherein it is stated that the child was
brought by his grandfather. Based on these, learned counsel contended that
Vaithiyalingam [PW-1] had not taken Akash Varma to hospital.
10. Coming to the first submission of the learned counsel with regard
to the contradiction, at the most, the testimony of Vaithiyalingam [PW-1]
with regard to this aspect alone can become doubtful and that, by itself, is
not sufficient to completely disbelieve his testimony, just because, in the
complaint [Ex.P1], Vaithiyalingam [PW-1] had stated of the facts, including
the fact that the appellant was confronted by him and other villagers and
when the appellant was prevaricating, they suspected some foul play and
therefore, they themselves went to the house of the appellant and started
searching. During the search of the appellant's house, the body of Akash
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Criminal Appeal No.528 of 2018
Varma was found in a vessel [MO-1] and his T-shirt [MO-2] was also found
there.
11. The learned counsel for the appellant contended that when the
appellant was not at home, someone else would have placed the dead body
of Akash Varma there. Though this argument may superficially look
appealing, yet, the appellant had not suggested to any of the witnesses that
Akash Varma was murdered by someone and the body was placed in his
house. A mere explanation u/s.313 Cr.P.C. would not, by itself, negative the
presumption u/s.106 of the Evidence Act, especially, in the light of
overwhelming evidence implicating the appellant in the offence.
12. The learned counsel also contended that the appellant had not run
away but was beaten by the villagers and was hospitalised. It is true that in
the evidence of the Investigating Officer [PW-12], he has admitted this fact.
It is natural in the country side, for the villagers to get incensed when a
ghastly crime of this nature is committed and therefore, they would have
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Criminal Appeal No.528 of 2018
thrashed the appellant in anger, after the body of Akash Varma was
discovered in his house. This only fortifies the prosecution case that the body
of Akash Varma was found inside the house of the appellant and the
appellant was not able to satisfactorily explain as to how Akash Varma
reached the vessel.
13. In view of the foregoing discussion, the impugned judgment and
order of the trial Court convicting and sentencing the appellant as stated in
paragraph No.2.10 (supra), is upheld.
In the result, this Criminal Appeal is dismissed as being devoid of
merits.
[P.N.P., J] [R.H., J]
01.12.2021
Index: Yes/No
gm
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Criminal Appeal No.528 of 2018
P.N.PRAKASH, J
and
R.HEMALATHA, J
gm
To
1.The Principal Sessions Judge (Mahalir Court),
Cuddalore.
2.The Inspector of Police,
Mangalapettai Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court, Madras.
Criminal Appeal No.528 of 2018
01.12.2021
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