Madras High Court
Karthi @ Karthikeyan vs The State on 28 April, 2025
Author: M.S.Ramesh
Bench: M.S.Ramesh
2025:MHC:1114
Crl.A.No.452 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.02.2025
Pronounced on 28.04.2025
CORAM :
THE HONOURABLE MR.JUSTICE M.S.RAMESH
AND
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
Crl.A.No.452 of 2019
Karthi @ Karthikeyan ...Appellant
Vs.
The State,
rep. by Inspector of Police,
Arakonam Taluk Police Station,
Arakonam, Vellore District. ...Respondent
Prayer: Criminal Appeal filed under 374 of Criminal Procedure Code to
set aside the conviction and sentence imposed in Spl.S.C.No.5 of 2016
dated 14.05.2019 on the file of Fast Track Court, Mahila Court (Sessions
Court), Vellore.
For Appellant : Mr.S.Suresh,
(Legal Aid Counsel)
For Respondent : Mr.S.Rajakumar,
Additional Public Prosecutor
Page 1 of 24
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Crl.A.No.452 of 2019
JUDGMENT
M.S.RAMESH, J.
The judgment of the learned Sessions Judge, Fast Track Court,
Mahila Court, Vellore made in Spl.S.C.No.5 of 2016 dated 14.05.2019,
finding the accused/appellant guilty of having committed the offences
under Sections 366, 302, 392, 201 of the Indian Penal Code (IPC),
together with Section 6 r/w 5(m) of the Protection of Children from
Sexual Offences Act, 2012, (POSCO Act) is assailed in the present
appeal.
2. For the sake of convenience, the parties in the appeal are
addressed according to their ranks in the trial Court.
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
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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.
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,
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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).
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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).
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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.
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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
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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
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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.
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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.
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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.
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
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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.
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
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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.
10. We have given our anxious consideration to the submissions
made and have perused the original records.
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.
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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
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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:-
“11/05/2014 md;W ehd; vdJ Mah
tPl;oy; 10 ehl;fs; njh;t[ Koe;J yPtpy;
,Ue;njd;/ vdJ Mah tPl;L gf;fj;jpy;
gps;isahh; nfhapyhz;l ehd;. vd; mf;fh
tpdpjh. epyh Mfpa K:d;W ngh; kjpak;
tpisahof;bfhz;oUe;njhk;/ mg;nghJ vd;
mf;fh tpdpjhit I!;fphpk; th';fp
jUfpnwd; vd;W brhy;yp vjphp igf;fpy;
miHj;J bfhz;L brd;whh;/
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/////
vd; mf;fh tpdpjh jdpahf brd;whs;
vd;why; rhpay;y/ fhh;j;jpf; jhd;
tz;oapy; Vw;wpf;bfhz;L brd;whh;/
mjd;gpwF vdJ mf;fh tPl;ow;F
tutpy;iy/”
The aforesaid statements of P.W.8 are self-explanatory, which imposes
confidence in us to render it as wholly reliable.
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
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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.
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
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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
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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
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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
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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
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is due to asphyxia.
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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/04/2025 08:04:22 pm )
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.
[M.S.R., J] [N.S., J]
28.04.2025
Index:Yes
Neutral Citation:Yes
Speaking order
hvk
Note: Issue order copy on 29.04.2025
To
1.The Sessions Judge,
Fast Track Court, Mahila Court, Vellore.
2.The Inspector of Police,
Arakonam Taluk Police Station,
Arakonam, Vellore District.
3.The Public Prosecutor,
High Court of Madras.
4.The Superintendent of Prisons,
Central Jail, Vellore.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/04/2025 08:04:22 pm )
M.S.RAMESH, J.
and
N.SENTHILKUMAR, J.
hvk
Pre-delivery judgment made in
28.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/04/2025 08:04:22 pm )
