Madras High Court
Jam Raj vs The State Represented By on 22 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)Nos.214 & 493 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)Nos.214 & 493 of 2021
Crl.A(MD)No.214 of 2021:
Jam Raj ... Appellant
Vs.
1.The State represented by
The Inspector of Police,
Marthandam Police Station,
Kanyakumari District.
(Crime No.413 of 2015) ... Respondent /
Complainant
2.Nirmal Jayachandra
3.David PackiaBabu
4.Pushpa Rani ... Respondents /
Accused 1 to 3
Prayer: Criminal Appeal filed under Section 378 r/w 372 of Code of Criminal
Procedure, 1973 to call for the records relating to the acquittal judgment passed
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Crl.A(MD)Nos.214 & 493 of 2021
by the Fast Track Mahila Court, Nagercoil in SC.No.203 of 2016 dated
29.01.2021 and allow the appeal and may convict the 1 and 2 Accused /
Respondents person according to law.
For Appellant : Mr.S.Suresh Kumar
For Respondents : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
for R.1
Mr.Muthu Saravanan for R.2 & R.4
R.3 – Died
Crl.A(MD)No.493 of 2021:
The State represented by
The Inspector of Police,
Marthandam Police Station,
Marthandam,
Kanniyakumari District.
(Crime No.413 of 2015) ... Appellant
Complainant
Vs.
1.Nirmal Jayachandran
2.Pushpa Rani ... Respondents
Prayer: Criminal Appeal filed under Section 378(i) of Code of Criminal
Procedure, 1973 to call for the records in S.C.No.203 of 2016 dated 29.01.2021
on the file of the Sessions Judge, Mahila Fast Track Court, Nagercoil, set aside
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the same and convict the respondents / Accused [A-1 & A3] in accordance with
law.
For Appellant : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For Respondents : Mr.Muthu Saravanan
COMMON JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
These appeals are directed against the judgment dated 29.01.2021
made in S.C.No.203 of 2016 on the file of Fast Track Mahila Court, Nagercoil.
These appeals have been preferred both by the defacto complainant as well as
the State.
2.The case of the prosecution is as follows:
Caroline Viola Bel was the daughter of the defacto complainant / Jam Raj. Her
marriage with Nirmal Jayachandran / A1 was solemnized on 19.02.2007 as per
Christian rites and customs. A2 and A3 are the parents of A1. Through the
wedlock, two children were born. The accused subjected the deceased to
cruelty and demanded additional dowry. On 20.06.2015, A2 and A3 snatched
the gold chain from the deceased. At that time, the first accused hit the
deceased with an iron rod. Caroline Viola Bel was rushed to Issac Hospital,
Marthandam for first aid. She was thereafter shifted to Nims Hospital,
Neyyattinkarai for further treatment. Caroline Viola Bel passed away on
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24.06.2015. Thereafter, Ex.P1 complaint dated 24.06.2015 was lodged by Jam
Raj / father of the deceased before the Inspector of Police, Marthandam Police
Station. Crime No.413 of 2015 was registered for the offences under Sections
498(A) and 302 of IPC. PW27 who was the Inspector of Police took up
investigation. He went to the occurrence spot on 25.06.2015 at around
midnight. He prepared a rough sketch Ex.P6 and observation mahazar Ex.P7.
He later examined the witnesses and recorded their statements. He sent the
body for post-mortem. He arrested A2 and A3 at around 11.00 a.m on
25.06.2015. Based on their disclosure statement, thali chain and holy cross
locket were recovered (MO2 and MO3). On 01.07.2015, A1 surrendered before
the learned Judicial Magistrate No.3, Nagercoil. Police custody was taken on
09.07.2015 at around 14.30 hrs. A1 gave confession statement in the presence
of Suresh and Rajan. Based on the disclosure statement, MO1 iron rod was
recovered under Ex.P2 mahazar. Since PW27 was transferred, PW28 continued
the investigation. Since PW28 was also transferred, PW29 continued the
investigation and filed final report against the accused. He filed final report for
the offences under Sections 302, r/w Sec 34 IPC. The case was taken on file in
PRC.No.11 of 2016 and committed to the Principal Sessions Court, Nagercoil.
It was made over to Fast Track Mahila Court, Nagercoil in SC.No.203 of 2016.
Charges were framed against the first accused for the offences under Sections
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498(A), 302 and 201 IPC. Charges were framed against A2 and A3 for the
offences under Sections 498(A), 302 r/w 34 and 201 of IPC. The second charge
under Section 302 IPC was framed against A1. Third charge under Section 302
read with 34 of IPC was framed against the accused A2 and A3.
3.On the side of the prosecution, as many as 29 witnesses were
examined. PW1 to PW29 were marked. ExP1 to Ex.P12 were marked. MO1
to MO3 were marked as material objects. Incriminating circumstances were put
to the accused during examination under Section 313 of Cr.P.C. The accused
characterised them as false. No evidence was adduced on the side of the
accused. After considering the evidence on record, the Court below vide
judgment dated 29.01.2021 acquitted the accused of all the charges. Even
during the pendency of the trial, A2 passed away and the charges framed
against him stood abated. Aggrieved by the same, the defacto complainant has
filed Crl.A(MD)No.214 of 2021, State has filed Crl.A(MD)No.493 of 2021.
4.Heard the learned counsel appearing for the petitioner as well as the
learned Additional Public Prosecutor appearing for the State. They submitted
that the prosecution had convincingly proved the charges beyond reasonable
doubt. The Court below erred grievously acquitting them. They pointed out
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that occurrence had taken place inside the house of the accused. They invoked
Section 106 of the Evidence Act, 1872. They pointed out that the accused had a
duty to explain and that they failed to discharge the burden cast on them. Our
attention was drawn to the testimony of PW3 who is a child witness. The child
had deposed naturally and convincingly and it could not be shaken during cross
examination. They prayed to set aside the impugned judgment of the learned
trial Judge and allow these appeals as prayed for.
5.Per contra, the learned counsel appearing for the accused submitted
that the impugned judgment is well reasoned and that it does not call for
interference.
6.We carefully considered the rival contentions and went through the
evidence on record.
7.The complaint was lodged by Jam Raj / PW1 father of the deceased.
Admittedly, he is not an eye-witness. PW2 mother of the deceased had been
projected as one of the eye witnesses. She deposed that on 20.06.2015
(wrongly typed in the typed set), she contacted her daughter over phone. The
deceased told PW2 that her husband and in-laws are planning to murder her.
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Thereupon, PW2 and her son Ragu / PW23 rushed to the house of the deceased.
When they went, A2 and A3 snatched the thali chain from the deceased and A1
hit the deceased with iron rod on the head and other parts of the body. When
PW2 and others tried to stop them, the accused criminally intimidated them.
According to PW2, thereafter the accused took her daughter to the hospital.
8.The question that calls for consideration is whether the testimony of
PW2 can be believed. She is none other than the mother of the deceased. She
claims to have witnessed the brutal attack on her daughter by her son-in-law. It
is relevant to note that the occurrence admittedly took place on 20.06.2015 at
around 09.00 p.m. Caroline Viola Bel passed away only on 24.06.2015 at
around 05.30 p.m. There has been a clear gap of full four (4) days between the
date of occurrence and the date of death. However, complaint was lodged only
on 24.06.2015 at around 11.30 p.m. If really an attack as described by PW2
had taken place, complaint would have been lodged then and there. PW2
would have definitely told PW1 and PW1 would not have kept quiet. As
pointed out by the learned counsel for the respondents, PW1, PW2 and other
relatives were very much in the hospital keeping vigil. That there was silence
on their part till the lodging of the complaint at 11.30 p.m on 24.06.2015 leads
us to believe that PW2 could not have been an eye witness. Her version sounds
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utterly improbable. The Court below therefore was justified in rejecting her
testimony. On the other hand, PW1 / father of the deceased had claimed that
when they rushed to their daughter's house on the occurrence date, they heard
their daughter's scream from inside the house. The accused are said to have
told PW1 and PW2 that the deceased had fallen down from the stairs. PW.1's
version also has to be rejected for the very same reason. If really PW1 had
heard his daughter's scream on the occurrence date, he would have definitely
lodged complaint before the jurisdictional Police immediately. That he did not
do so renders the version projected in Ex.P1 complaint as highly improbable.
9.For the very same reason, PW23 also cannot be believed. PW3 is
the child born to the deceased and A1. PW3 was around 8 years when he was
examined in the Court. The occurrence had taken place on 20.06.2015.
Examination of witness took place on 08.02.2017. Admittedly, PW3 was in the
custody of the maternal grand parents. He supported the prosecution version.
In his testimony, the child deposed as follows:“mg;bghJ vdJ lho xU KUf;F
fk;gpia vLj;J vdJ kk;kpapd; jiyapy; moj;jhh;fs;”. Such intricate description
of MO1 could not have come from a child who was aged hardly 6 years when
the occurrence took place. PW3 added that he and his sibling cried. If really the
child has witnessed such an event, he would have definitely disclosed it to his
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maternal grandparents. The Court below rightly rejected the child's statement.
It is true that even a child can be a competent witness but then, the Court must
be satisfied that the child is speaking the truth and that it has not been tutored.
10.The Hon'ble Supreme Court in the decision reported in 2023 SCC
OnLine SC 777 (Pradeep v. State of Haryana) held as follows:
“9.It is a well-settled principle that corroboration of the
testimony of a child witness is not a rule but a measure of caution
and prudence. A child witness of tender age is easily susceptible
to tutoring. However, that by itself is no ground to reject the
evidence of a child witness. The Court must make careful scrutiny
of the evidence of a child witness. The Court must apply its mind
to the question whether there is a possibility of the child witness
being tutored. Therefore, scrutiny of the evidence of a child
witness is required to be made by the Court with care and
caution”.
11.The Court below after a careful consideration of the testimony of
PW3 came to the conclusion that the child had been tutored and therefore the
said testimony has to be rejected. We are of the view that the approach adopted
by the Court cannot be said to be incorrect. Mere delay in lodging the FIR will
not be fatal. If proper explanation is given, the Court will overlook the delay.
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But in this case, there is no explanation. Caroline Viola Bel had suffered
grievous injury on 20.06.2015. She remained totally unconscious. She died at
05.30 p.m on 24.06.2015. Nothing stopped PW2 or her husband from lodging
the complaint on the same day. That no accusation was made against the
respondents till 11.30 p.m on 24.06.2015 led the court below to conclude that a
twisted version had been given as an after thought. That is why the Court
below decided not to act on the testimony to PW2, PW23 and PW1.
12.Even the cause of death is not free from doubt. The accused have
been prosecuted for the offence of murder. Therefore, it was incumbent on the
prosecution to show that the deceased died due to homicidal violence. The
prosecution has come out with the case that A1 hit the deceased with an iron
rod on the head. The stand of A1 was that the deceased fell from the staircase.
PW18 who gave the first aid as well as PW22 who conducted post-mortem
deposed that the confusion and abrasion found on the body of the deceased can
be due to fall from upstairs and rolling on the steps. Of course, under Section
106 of the Evidence Act, the accused is obliged to discharge the burden cast on
him in respect of the facts which are within his special knowledge. In this case,
the accused have come out with an explanation regarding the injury found on
the deceased. Their explanation is consistent with the testimony of the medical
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witnesses. The burden of cast under Section 106 of the Evidence Act need not
be discharged beyond reasonable doubt. It is enough if it is discharged on the
balance of probabilities. We hold that this burden cast on the accused has been
satisfactorily discharged.
13.The Court below took into account several aspects. The learned
Trial judge took into consideration not only the delay in lodging the complaint
but also the material contradictions among the witnesses. He finally came to
the conclusion that the charges against the accused have not been established
beyond reasonable doubt. The Court below also took note of the fact that
recovery of MO1 was not proved. The prosecution claimed that MO1 was
recovered from the house of the accused. PW5 (the recovery witness) did not
support the said version.
14.We are not inclined to interfere with the well-reasoned judgment
of the Court below. These Criminal Appeals are dismissed. No costs.
[G.R.S., J.] [R.P., J.]
22.01.2024
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
MGA
To
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Crl.A(MD)Nos.214 & 493 of 2021
1. Fast Track Mahila Court,
Nagercoil.
2.The Inspector of Police,
Marthandam Police Station,
Kanyakumari District.
G.R.SWAMINATHAN, J
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Crl.A(MD)Nos.214 & 493 of 2021
and
R.POORNIMA, J.
MGA
Crl.A(MD)Nos.214 & 493 of 2021
22.01.2025
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