CHENNAMURTHY Vs. STATE

JUDGEMENT

(1.) THIS appeal challenges a judgment of the Sessions Division, Tiruvannamalai, made in S.C.No.124 of 2006 whereby the appellant/A-1 stood charged under Sections 377, 302 and 201 of IPC along with another shown as A-2, and on trial, A-1 was found guilty under Sections 302 and 201 of IPC and awarded life imprisonment along with a fine of Rs.15000/- and default sentence and one year Rigorous Imprisonment along with a fine of Rs.5000/- and default sentence respectively and acquitted of the charge under Sec.377 of IPC. A-2 was acquitted of the charge levelled against him.

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the Correspondent of St. Joseph Higher Secondary School in which P.W.2 was the Chief Warden of the Hostel, and A-1, A-2, Nimilan, Illango and Babu were Sub Wardens. THE deceased Saravanan was a student studying VI Standard and also staying in the hostel run by Mercy Home at the time of occurrence. P.W.3 was studying VII Standard, and P.W.4 was studying VIII Standard. THEy were also residing in the very same hostel. After taking dinner on 1.12.2005 at about 8.15 P.M., the deceased went out of the study hall. P.W.3 who went outside to attend nature's call, saw the deceased being taken by A-1 towards the mess. After attending the nature's call, P.W.3 returned to the study hall. THE attendance was used to be taken by the Students Leader, P.W.4. On that day, only A-1 took the attendance for VII and VIII Standard by calling the names of the students but, for the VI Standard, without calling the names of the students, he recorded as if all were present. P.W.4 and one Rajkumar informed A-1 that the deceased was not present for which A-1 replied that he was being paid salary and not to them and asked them to bind their business. At about 9.45 P.M., all the students went to bed. At that time, P.W.4, the Student Leader, informed A-1 that the deceased was missing. A-1 scolded him and asked him to go to bed. (b) On 2.12.2005 at about 5.00 A.M., A-1 gave a wake up call to all the students, and thereafter, he went asleep till 7.00 A.M. He was woken up by the students, and they told him that the deceased was found dead. Immediately A-1 told them that if police enquire them, they should tell that the deceased was also sleeping along with them during that night. THEn, A-1 took the attendance for VI to VIII Standards. One Benjamin who was there, questioned A-1 why he was putting present for the deceased who is dead. Immediately, A-1 turned that page, took another sheet, wrote the names of all the students and put a dot against the name of the deceased. At about 6.45 A.M., one Alex and Joseph the Cooks in the hostel, informed P.W.1 that a dead body of a boy was lying near the water tank. P.W.1 immediately rushed to the place, found the deceased lying in a pool of blood, and he was with bleeding injuries. A stone was also found near the dead body. He called for A-1 and enquired him. A-1 replied that on 1.12.2005 at about 9.00 P.M., after making students to go to bed, he also slept in the room, and he did not know what had happened. On 2.12.2005, P.W.1 went to the respondent police station at about 11.00 A.M. and lodged a report, Ex.P1. P.W.13, the Sub Inspector of Police, on the strength of Ex.P1, the report, registered a case in Crime No,802 of 2005 under Sec.302 of IPC. THE printed FIR, Ex.P19, was despatched to the Court. (c) P.W.15, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation at about 12.15 P.M., proceeded to the scene of occurrence, made an inspection, prepared an observation mahazar, Ex.P13, and also drew a rough sketch, Ex.P22 in the presence of witnesses. THEn he caused the photographs to be taken of the dead body and also the scene of occurrence through P.W.9, the Photographer. At about 1.00 P.M., he recovered M.O.5, bloodstained earth, M.O.6, sample earth, M.O.1, stone, and M.O.7, pen, under a cover of mahazar, in the presence of witnesses. THEreafter, he conducted inquest on the dead body of Saravanan in the presence of witnesses and panchayatdars. Ex.P23 is the inquest report prepared by him. THE dead body was sent to the Government Hospital along with a requisition for postmortem. THEn, he examined the witnesses and recorded their statements. (d) P.W.10, the Doctor, attached to the Government Hospital, Polur, on receipt of the requisition, conducted autopsy on the dead body of Saravanan and has given his opinion in Ex.P17, the postmortem certificate, that the deceased would appear to have died of asphyxia due to throttling 37 to 39 hours prior to autopsy. (e) After the completion of the autopsy, P.W.12 produced the shirt worn by the deceased, marked as M.O.1, and trouser, M.O.11, and amulet, M.O.12, under a report Ex.P18. (f) On 4.12.2005 at about 4.00 P.M., when P.W.2, the Chief Warden, was in his house with the Assistant Sadanandam, A-1 and A-2 appeared before him, and A-1 gave an extra-judicial confession. P.W.2 reduced the same into writing, and the said confession of A-1 is Ex.P3. He got the signature of both the accused. He prepared his covering letter, Ex.P4, and produced Exs.P3 and P4 and both the accused before the Investigating Officer. THEn the case was altered from Sec.302 of IPC to Sections 302, 377 and 201 of IPC. THE Investigator prepared an express report, Ex.P24, and sent to the Court. (g) P.W.15 examined A-1 at about 7.30 P.M. and recorded his confession. Based on the confessional statement, he produced M.O.2 shirt, M.O.3, lungi, and M.O.4, jatti of A-1, which were recovered under a mahazar, Ex.P5. At about 8.30 P.M., he recorded the confessional statement of A-2. THEn P.W.15 took both the accused to the scene of occurrence, prepared an observation mahazar, Ex.P6, and drew a rough sketch, Ex.P25. THEreafter, he examined P.W.2 and recorded the statement. On 5.12.2005, P.W.15 examined P.Ws.4 and 5 and recorded their statements. On the very day, he forwarded A-1 to the hospital to ascertain the potency of A-1. P.W.14, the Doctor, attached to the Government Hospital examined A-1 and A-2 on 16.12.2005 and issued potency certificates, Exs.P20 and P21 respectively. (h) On 6.12.2005, P.W.15 examined P.Ws.1, 7 and 8 and recorded their statements. On the very day, he seized the attendance register of the school, Ex.P7. THEreafter, on 7.12.2005, he gave a requisition for recording the statements of P.Ws.4 and 5 under Sec.164 of Cr.P.C. P.W.6, the Judicial Magistrate, Vandavasi, on receipt of the requisition and the order of the Chief Judicial Magistrate, recorded the statements of P.Ws.4 and 5 on 9.12.2005, which proceedings were marked as Exs.P9 and P10 respectively. THE material objects were sent for chemical analysis, and Ex.P26 is the report of the chemical analyst and serologist. On completion of the investigation, the Investigating Officer filed the final report.

(3.) ADDED further the learned Senior Counsel that the above two circumstances though relied on by the prosecution, should have been rejected by the trial Court, but were erroneously accepted that as far as the first circumstance was concerned, P.W.3 was the student of VII Standard that according to him, on the date of occurrence at about 8.15 P.M. he went outside for attending nature's call, and at that time, he found A-1 proceeding towards the mess room, and the deceased followed him that nowhere P.W.3 has stated that A-1 took the deceased to the mess room that though P.W.3 has deposed before the Court that he saw A-1 followed by the deceased towards the mess room at or about the time of occurrence, and P.W.4 has complained to A-1 as to the absence of the deceased at the time of taking the attendance and also in the bed room, the statements of these two witnesses were recorded only on 5.12.2005 that both P.Ws.3 and 4 have categorically admitted that they were present in the School on that day and that on 2.12.2005, the police officials came over and enquired all the students including them that had it been true that P.W.3 had witnessed the deceased following A-1 just before the occurrence and P.W.4 has complained as to the absence of the deceased to A-1 at the time of taking attendance and also when they went for bed, they would have certainly informed the Investigator at the time when they were first enquired on 2.12.2005 itself, but, they have not whispered anything that their silence would be indicative of the fact that they did not know anything, and they have been added as witnesses to suit the prosecution case, and that too after recording the alleged extra-judicial confessional statement that much reliance was placed by the prosecution on the extra-judicial confession alleged to have been made by A-1 and A-2 to P.W.2 on 4.12.2005 that it is true that P.W.2 was the chief warden under whom A-1 and A-2 and other three others were working as Sub Wardens that P.W.1 and other witnesses have categorically admitted that the Investigator along with the police party visited the spot on 2.12.2005 itself and enquired all the inmates and also all the five wardens that the witness has specifically spoken to the fact that all five wardens were taken to the police station, and A-1 and A-2 were retained in the police station while others were allowed to go out, and thus it would be quite clear from the evidence that A-1 and A-2 were actually in the police custody from 2.12.2005 onwards that the claim made by P.W.2 that A-1 and A-2 came to his house on 4.12.2005 at 4.00 P.M. and made extra-judicial confession as found in Ex.P3, cannot but be false that further according to P.W.2, on 2.12.2005 and 3.12.2005, he was away, and he returned only on 4.12.2005 but, this part of his evidence was falsified from the evidence of the other witness stating that he was very well available in the school during those days that according to P.W.15, the Investigator, when he reached the School on 2.12.2005, he could not see A-1 and A-2 and they were absconding and they were actually produced by P.W.2 only on 4.12.2005 along with Ex.P3 confessional statement and Ex.P4 covering letter of P.W.2 but, it is thoroughly falsified by the evidence of the other witnesses stating that all the wardens were very well available on 2.12.2005, and they were taken to the police station, and A-1 and A-2 were retained by and in the custody of the police all along the period and that all would go to show that the extra-judicial confession was nothing but cooked up to suit the prosecution case.