SELVAGANESH Vs. STATE

JUDGEMENT

(1.) THE sole accused is the appellant herein. The accused was charged for committing the offence under Section 364 of the Indian Penal Code by kidnapping one Dinesh Kumar @ Appu and also for committing the offence under Section 302 of the Indian Penal Code by strangling the neck of the said Appu. The trial court found the appellant guilty of both the offences and sentenced the accused to undergo five years' rigorous imprisonment and awarded a fine of Rs. 1,000/- for the offence under Section 364, I. P. C. and in default in payment of fine, to undergo six months' rigorous imprisonment and for the offence under Section 302, I. P. C. he was sentenced to undergo life imprisonment and fine of Rs. 1,000/- and six months' rigorous imprisonment in default of payment thereof. The appeal is preferred against this judgment.

(2.) THE case of the prosecution is as follows :-The deceased Dinesh Kumar @ Appu is the son of one Thangamuthu, resident of Vadakku Palpannaicheri and was about 3 years old at the time of death. Thangamuthu is P. W. 1 and his wife Nagalakshmi @ Pappathi, the mother of the deceased, is P. W. 3. Prior to the date of occurrence, i. e. 18. 2. 2000, the accused Selvaganesh @ Prakash had attempted to misbehave with P. W. 3. She complained about this to her husband, P. W. 1 and on that very day, P. W. 1 intimated the matter to P. W. 5, Pakkirisamy, who is the Municipal Ward Councillor. Thereafter, P. W. 5 went to the house of the accused and warned him not to repeat the said behaviour. After that incident, the relationship between P. W. 1 and P. W. 3 on the one hand and the accused on the other hand deteriorated. On 18. 2. 2000, the deceased Dinesh Kumar @ Appu, who was studying in L. K. G. , went to school as usual by the school van and returned home at 5. 30 pm. Usually he would go to play for about an hour and he would return at 6. 30 pm. On the date of occurrence also, the deceased left his school bag in his house and went out to play. Even after 6. 30 pm, he did not return home. Therefore, P. W. 3, his mother, went out to search him. P. W. 3 saw P. W. 4, Uma, who lives just opposite to the house of P. Ws. 1 and 3 and asked whether she had seen her son. P. W. 4 told her that she had seen Appu standing in front of the house of the accused, which is three houses to the west of the house of P. W. 1. According to her, one of her goats was missing, she had gone out to look for it and when she was returning with the goat, she had seen the accused going to his home carrying Appu on his shoulder. On hearing this, P. W. 3 went up to the house of the accused and called out for her son. At about this time around 7p. m. , P. W. 1 returned from work. P. W. 1 is a Sidha Vaidhya, working as an Assistant to a Doctor in Nagapattinam. P. W. 3 informed him that their son was missing and she also told him that P. W. 4 had seen their son in the company of the accused at about 6. 30 pm. P. W. 2, Amulraj, who is the neighbour of P. W. 1 and one Somasundaram, who is not examined, searched for the child alongwith P. W. 1. They entered the house of the accused. P. W. 1 saw his son being strangled by the accused. P. W. 1 shouted, Immediately, the accused escaped through the rear door of his house. This was seen by P. W. 2. The child's neck was limp and there was blood trickling from his nose; he was not conscious. So, P. W. 1 and P. W. 3 took the child to the Government Hospital, Nagapattinam in the vehicle belonging to P. W. 1. P. W. 9, who was the Duty Doctor at the Hospital, examined the child and pronounced him dead; he also prepared Ex. P. 6, the death intimation at 8. 20 pm on 18. 2. 2000. This was received by P. W. 12, the Sub Inspector of Police at Nagore Police Station. P. W. 12 went to the Government Hospital. P. W. 1 lodged the complaint, Ex. P. 1 with P. W. 12 and thereafter, P. W. 12 went to the Nagore Police Station at 9. 45 pm and registered the case in Crime No. 48 of 2000. He prepared the Express F. I. R. , Ex. P. 15 and forwarded the same to the Judicial Magistrate, Nagapattinam and other high officials. P. W. 13, the Investigating Officer, who was at that time the Inspector of Police in Nagore Police Station, received Ex-P15 at 11 pm on 18. 2. 2000 and rushed to the scene of occurrence. He prepared the observation mahazar, Ex. P. 2, which was witnessed by P. W. 6 and another; he also prepared the rough sketch, Ex. P. 16. On 19. 2. 2000, P. W. 13 conducted the inquest on the body of the deceased at 7 am at the Government Hospital in the presence of witnesses and panchayatdars; the inquest report is Ex. P. 17. Thereafter, P. W. 13 handed over the body along with the requisition, Ex. P. 7, for conducting autopsy. Upon receipt of Ex. P. 7, the Doctor, P. W. 10 conducted the post mortem and found the following :-

(3.) LEARNED counsel appearing for the appellant would submit that the oral evidence in this case is full of contradictions and therefore, not much credence can be given to the statements made by the witnesses. The learned counsel also submitted that the inconsistencies with regard to the time at which the various events are said to have taken place also cast serious doubts on the case of the prosecution. The learned counsel wondered if it is natural for a mother, on hearing that her son had been taken by the accused who allegedly had enmity with her, not to immediately go and search for her son in the house of the accused and whether the mother would search for her son in other places and wait for her husband to return home. The learned counsel also submitted that as per Ex. P. 1, P. W. 1 and his companions, viz. , P. W. 2 and the other person Somasundaram, had all entered the house of the accused at the same time and all of them shouted that the accused was killing the child -Whereas, the oral evidence indicates that P. W. 1 alone saw the occurrence and shouted the above words and that P. W. 2 only followed him subsequently. Learned counsel would, therefore, submit that a doubt arises whether the deceased was at all found in the house of the accused. The learned counsel further submitted that there are discrepancies with regard to the time at which P. W. 4, Uma is said to have given the information to P. W. 3 that she had seen the deceased in the company of the accused. According to him, as per one version, P. W. 4 first told this to P. W. 3, who later conveyed it to P. W. 1, whereas according to P. W. 2, P. W. 4 gave the information when P. W. 1 and P. W. 3 were standing together, but according to P. W. 4 herself, she first told this to P. W. 3 and at about that time, P. W. 1 came there from his work and she repeated it to him. When each version differs from the other, not much reliance can be placed on any of these witnesses was the submission of the learned counsel. Learned counsel also submitted that the alleged motive itself is very difficult to believe. P. W. 1 has stated in his oral evidence that the misbehaviour of the accused with his wife happened six months earlier, In his complaint, Ex. P. 1, P. W. 1 has referred to the date of the said misbehaviour as a few days ago, Whereas, P. W. 3, the wife of P. W. 1, would say that the incident happened in the month of Kaarthigai, which is about three months prior to the date of occurrence. The Ward Councillor, P. W. 5, says in his chief-examination that the alleged misbehaviour took place six months before the date of occurrence, whereas in the cross-examination, he would say that it happened in the month of Kaarthigai. Therefore, according to the learned counsel for the appellant, this would also show that the existence of motive itself is very much in doubt.