UDAYA KUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The appellant is the sole accused in Special S.C. No. 51 of 2016 on the file of Sessions Judge, Fast Track Mahila Court, Krishnagiri. He stood charged for the offences punishable under Sec. 5 (l) (m) (n) read with Sec. 6 of The Prevention of Children from Sexual Offences Act, 2012 (in short, POSCO) and Sec. 302 of the Indian Penal Code (in short, IPC). After conclusion of trial, the trial court, by judgment dtd. 6/7/2018, found the appellant guilty of the charges and convicted and sentenced him to undergo life imprisonment for the offence under Sec. 5 (l) (m) (n) read with Sec. 6 of the POSCO Act with fine of Rs.20,000.00, failing which, to undergo rigorous imprisonment for a period of one year. He was also sentenced to undergo another life imprisonment for the offence punishable under Sec. 302 of IPC with fine of Rs.5,000.00, failing which, to undergo rigorous imprisonment for a period of one year. However, both the sentences of life imprisonment were ordered to run concurrently. Aggrieved by the judgment dtd. 6/7/2018 passed by the trial court, the present appeal is filed.

(2.) The appellant in this appeal is the husband of Swetha/PW1. The deceased in this case is minor female child, by name Pooja Aswini, who was 18 months old at the time of her death. PW1 was earlier married to one Chinna Achary and due to such wedlock, the minor female child Pooja Aswini was born. However, due to matrimonial discord, the husband of PW1 Chinna Achary deserted her and contracted another marriage with a woman. Therefore, PW1 and the minor female child came to Bangalore, where she stayed in her aunt's house. During such stay, PW1 went for an employment as a Gardener, where she met the appellant/accused. The acquaintance between PW1 and the appellant has intensified and therefore, PW1, with the permission of her parents, married the appellant. Thus, the appellant is the second husband of PW1. It is stated that after the marriage, the appellant felt that the minor female child is a hindrance to his matrimonial life with PW1 and therefore, he wanted to get rid of the child from the company of PW1. According to the case of prosecution, on 23/8/2016, Manju, the daughter of the aunt of PW1 had delivered a child in a hospital at Thally and on hearing the same, PW1 went to the hospital at about 10.00 am to assist her by leaving the minor female child in the custody of the appellant. The appellant also requested PW1 to return back as soon as possible, however, PW1 could not return from the hospital and she stayed there. When she was in the hospital at Thally, she was informed that the minor female child sustained injuries due to an accidental fall from the porch and she was taken to the Denkanikottai Government Hospital. She was also informed that on examination of the child at Government General Hospital, Denkanikottai, the Doctor found the female child breathless and declared brought dead. PW1 immediately reached the hospital and noticed swelling on the lips and head and contusion in the vaginal portion of the child. According to the prosecution, PW1 suspected a foul play in the death of the minor female child and informed it to PW2, father and PW3, mother. PW1 also attributed motive against the appellant for the death of the minor female child. Thereafter, PW1, along with her father/PW2, went to Thally Police Station on 24/8/2016 at about 7.00 am and narrated the sequence of events that led to the death of the minor female child. Since PW1 was not acquainted with Tamil language, her statement was recorded in Tamil by PW12, Sub-Inspector of Police and it was reduced into writing in the form of a complaint, Ex.P1. On the basis of such complaint, a case in Crime No. 214 of 2016 was registered by PW12 for the offence under Sec. 174 of the Code of Criminal Procedure. The copy of the First Information Report is Ex.P11 and it was sent to the higher police officials as well as Court.

(3.) On receipt of the First Information Report at about 8.15 am on 24/8/2016, PW13, Inspector of Police had taken up the investigation. He proceeded to the house of the appellant, where he had drawn an Observation Mahazar and rough sketch, under Ex.P3 and Ex.P12 respectively in the presence of witnesses Dhanareddy (PW5) and Hari Prasad (PW6). Thereafter, PW13 proceeded to the Mortuary attached to the Government General Hospital, Denkanikottai, where the dead body of the deceased was kept and conducted inquest. He also sent Ex.P9, requisition letter to the post-mortem Doctor through Ms. Vennila (PW14), Head Constable No.1158 with a request to conduct post-mortem. On the basis of such request, post-mortem was conducted by the Doctor/PW11. After conducting postmortem, PW11 issued Postmortem Certificate under Ex.P10 in which it was opined that the deceased would appear to have died of head injury with evidence of recent penetrating sexual assault. On the same day, PW13 recorded the statement of Swetha (PW1), Thimmarajappa (PW2), Gowramma (PW3), Bhagavandas (PW4), Muralimohan, Dhanarddy (PW5) and Hariprasad (PW6). At about 7.00 pm, when PW13 was in the Police Station, the Village Administrative Officer (VAO) of Saratpalli Village (PW10), along with the Village Assistant Ms.Pushpa, handed over the appellant to PW13 with a special report. On receipt of the special report and after taking the custody of the appellant, PW13 recorded a voluntary confession statement (Ex.P-14) given by the appellant. Pursuant to the confession statement, the appellant was taken to the place of occurrence at about 22.15 hours, where he had handed over (i) sandal colour nylon saree (MO1), (ii) white rose colour gown (MO2), (iii) blue colour underwear (MO3) and (iv) wooden log (MO4) from the backyard of the house, which were used for commission of the offence. The aforesaid material objects were recovered by PW13 under Ex.P8 in the presence of PW5 and PW6. Thereafter, the appellant was sent to the Court for remand. The recovered articles were sent by PW13 to Court under Form No.95 on 25/8/2016. In the meantime, based on the confession statement of the appellant, PW13 altered the First Information Report recorded in this case for the offence under Sec. 174 of Code of Criminal Procedure into one under Ss. 5 (l), (m) and (n) of POSCO Act and Sec. 302 of IPC. Ex.P13 is the alteration report which was forwarded to the Court of Sessions (Mahila Court), Krishnagiri. In continuation of the investigaiton, PW13 recorded the statement of Senthil Kumar (PW10), Pushpa, Village Assistant and Srinivas (PW7). On 29/8/2016, he had given a requisition to the Court to subject the appellant for medical test under Ex.P9. He had also given a requisition under Ex.P15 for sending the material objects recovered in the case for forensic examination. PW13 also recorded the statement of Surendran, Head Constable No.937, Dr. Rajkumar (PW8), Dr. Rajasekar (PW11), Arun Prabhu and Savithri, Sub-Inspector of Police (PW12). After conclusion of the investigation, PW13 laid the charge sheet against the appellant for the offences stated supra.