(Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 12.09.2005 made in S.C.No.97 of 2005 on the file of the Principal Sessions Judge, Chennai.)

D. Murugesan, J.

The appellant, who is the sole accused, stands convicted for the offence under Sections 302, 364 and 506(ii) of IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.100/-, in default to undergo simple imprisonment for one month for the offence under Section 302 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.100/-, in default to undergo simple imprisonment for one month for the offence under Section 364 IPC; to undergo rigorous imprisonment for one year for the offence under Section 506(ii) IPC and that the sentences are ordered to run concurrently by the judgment dated 12.9.2005 passed by the learned Principal Sessions Judge, Chennai in S.C.No.97 of 2005. Challenging the said conviction and sentence, the appellant has preferred this appeal.

2. The accused was put on trial on the following facts:-

P.W.2 is the wife of P.W.3 and the mother of the deceased-child Karthik, who was five months old at the time of occurrence. The accused was having illicit intimacy with P.W.2 and on the fateful day of occurrence i.e., on 7.12.2004 at about 4.00 a.m., the accused came to the house of P.W.2 and forced her to leave the matrimonial home and accompany him to lead a life of husband and wife. As the same was resisted by P.W.2, the accused forcibly kidnapped the deceased and had committed the murder.

3. To bring home the case of the prosecution, P.Ws.1 to 14 were examined, exhibits P-1 to P-17 were marked and M.Os.1 to 7 were produced.

4. The facts as put forth through the witnesses can be summarised as follows:-

P.W.3 and P.W.2 are the husband and wife and along with them, P.W.10, who is the sister of P.W.2, was also residing in the same house. Both P.W.3 and P.W.2 were blessed with two children namely, Surya, 3 years old and Karthik, five months old at the time of occurrence. As the accused and P.W.3 were friends, the accused used to come to the house of P.W.3 frequently to watch television and during such visits, he had developed illicit intimacy with P.W.2, the wife of P.W.3. The fact of illicit intimacy was not disclosed by P.W.2 to anyone including her husband, P.W.3.

5. On 7.12.2004 at about 2.30 a.m., after watching television by playing a C.D.player, P.W.3, who is a fisherman, went to the sea for his work. At about 4.00 a.m., the accused came to the house of P.Ws.2 & 3 and asked P.W.2 to come along with him to live separately. As it was resisted, the accused forced her by saying "fhh;j;jpf;if J}f;fp nghl;Ltpl;L ngha; tplyhk; th". Even then, P.W.2 refused and therefore the accused threatened her by saying "eP tuhtpl;lhy; fhh;j;jpia v;fhtJ J}f;fpg; ngha; VjhtJ bra;J tpLntd;". Thereafter, when the accused took Karthik, P.W.2 begged him to leave the child and also told him that she will reveal the relationship to her husband, if the accused did not leave the child. To this, the accused again threatened P.W.2 that if she revealed their relationship to her husband, he will do away her husband as well as her first son Surya. By saying so, he took the deceased Karthik and went away from that place. On seeing the accused taking her child, P.W.2 shouted and on hearing her cries, P.Ws.1,4,6 & 8 came there and they ran following the accused but, as the accused had disappeared, they could not find him. At about 6.00 a.m., P.W.1, who is a neighbour, saw the child near an ice factory lying dead with injuries.

6. Thereafter, P.W.1 lodged a complaint, Ex.P-1 to P.W.14, the Inspector of Police and the same was registered in Cr.No.439 of 2004 for the offence under Section 302 IPC. The printed First Information Report is Ex.P-12. Thereafter, P.W.14, along with P.W.1 and the police party, proceeded to the scene of occurrence namely, the ice factory and found the child lying dead inside. He saw the child wearing M.O.4, shirt and also saw the stone, M.O.1 lying nearby the deceased. He found injury on the left forehead as well the left little and ring fingers of the child were crushed. He prepared an Observation Mahazar, Ex.P-7 and drew a rough sketch, Ex.P-13 in the presence of one Selvaraj and Selvakumar. He conducted inquest on the body of the deceased in the presence of Panchayatdars and witnesses and recorded their statements. The said inquest report is Ex.P-14. He recovered the M.O.1, stone with lime mortar, M.O.2, bloodstained earth and M.O.3, sample earth from the scene of occurrence under the mahazar, Ex.P-8 in the presence of same witnesses. He sent the body of the deceased to the Government Stanley Medical College & Hospital for conducting post-mortem.

7. P.W.5, the doctor attached to Government Stanley Medical College & Hospital, on receipt of the requisition and the body, commenced post-mortem at 12.15 p.m., on the same day and found the following injuries:-

"1. Crush injury of left hand with fracture dislocation of mid phalanx of ring finger and distal phalanx of little finger with abrasion 3 x 3 cm was seen on dorsum of left hand, abrasion 2 x 1 cm was seen on inner aspect of left hand adjoining little finger and split lacerated wound 3 x 2 cm bone deep was seen on 3rd web space with extensively bruised underlying tissues.

2. Graze abrasion 14 cm in length was seen from left forehead in the upper end to right cheek in the lower end to an extent of 7-9 cm on left side of face involving left forehead, left eye, left side and tip of nose, left, cheek, left side of upper lip, left ear upto left occipital scalp and temporal scalp with serrated edges seen on left side of face. The direction of the abrasion was downwards, backwards and leftwards. The surface of the abrasion was red in colour.

3. Irregular abrasion 5 x 2 cm was seen on right side of forehead above middle of eyebrow. On further examination, the underlying fracture of the vault of skull was palpable.

4. Abrasion 3 x 1 cm was seen on left forehead.

5. Linear abrasion 4 x 0.5 cm was seen on right angle of eye.

6. Semilunar nail scratch mark 2 x 0.25 cm seen on right side of neck with convexity upwards 3 cm from midline, 4 cm below the angle of right side of mandible and 4 cm above sternal notch Karthick 5 months PM.No.1005 dated 7.12.04 Crime no.439/04 of N4 Fishing Harbour Police Station.

7. Irregular linear abrasion 2 x 0.5 cm seen on right side of neck just outer to injury no.6.

8. Swelling and deformity of chin with fracture of underlying mandible at chin with irregular reddish abrasion 3 x 2 cm on chin."

He issued the post-mortem certificate, Ex.P-3 with his opinion that the deceased would appear to have died of head injuries.

8. P.W.14, continuing with his investigation, examined P.Ws.1,2,3 and other witnesses and recorded their statements. He recovered the C.D.Player, M.O.5 and the discs, M.O.6 series from the house of P.W.2 under the mahazar. He searched for the accused and on receiving information about the whereabouts of the accused, he arrested the accused on 8.12.2004 at 2.00 p.m. at the fish market in the presence of the witnesses. In pursuance of the admissible portion of the confession of the accused, he recovered the jeans pant, M.O.7 under the mahazar. He brought the accused to the police station and remanded the accused to judicial custody. He also sent the seized material objects for chemical examination through the Court. He handed over the body of the deceased to P.W.3 for performing funeral. He recovered the bloodstained shirt worn by the deceased under Form-95 and also gave a requisition to the Court for sending the same to the fingerprint expert. He examined the post-mortem doctor, P.W.5 and recorded his statement. He examined the other witnesses and recorded their statements. After completing investigation and after obtaining legal opinion from the Government Advocate, he laid the charge sheet against the accused for the offence under Sections 302, 364 & 506(ii) of IPC.

9. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating circumstances appearing against him, he denied each and every circumstance as false and submitted that he has been falsely implicated in this case. No document was marked and no witness was examined on his side. The learned trial Judge, having found that the prosecution has proved its case beyond reasonable doubt, convicted and sentenced the accused for the offences as stated earlier.

10. In support of the appeal, Mr.M.G.L.Sankaran, learned counsel for the appellant has submitted that the prosecution has not put forth the true version of the case, as there are lot of inconsistencies and improbabilities in the evidence of the witnesses. The fact that the First Information Report does not contain the name of the accused gives suspicion as to the very complaint itself. Further, neither P.W.2 nor P.W.3 has given the complaint, but it was given only by P.W.1, a neighbour, throwing a serious doubt about the very complaint itself. He would submit that the injuries and the medical opinion as spoken to by P.W.5, the post-mortem doctor do not support the case of the prosecution. He would also submit that while P.W.10 had spoken as to the accused playing the C.D.Player with discs namely, M.Os.5 & 6 series in the house of P.W.2 on the date of occurrence, the fingerprint report was not produced which throws a serious doubt about the very seizure itself. He would further submit that the very complaint, Ex.P-1 itself is doubtful inasmuch as when P.W.1, the author of Ex.P-1, has deposed that the same was prepared on her narrating the occurrence, but on the other hand, P.W.14, the Investigating Officer has stated that P.W.1 came with a written complaint. The learned counsel would further submit that when the accused was questioned under Section 313 of the Criminal Procedure Code, he has specifically stated that as there was an illicit intimacy between P.W.2 and one Guru and in order to conceal the same, a false case had been foisted on him.

11. The learned counsel has extensively taken us through the evidence of the witnesses. So far as Ex.P-1 is concerned, he would rely upon the evidence of P.W.1 and P.W.14. Even though the evidence of P.W.1 goes to show that she was informed by P.W.2 as to the name of the assailant, obviously, she has not referred the name in Ex.P-1 throwing a serious doubt about the very complaint itself. Similarly, as far as the alleged motive regarding the illicit intimacy is concerned, the learned counsel would draw our attention to the entire evidence and contend that except the evidence of P.W.2, no other witness has spoken about the illicit intimacy between P.W.2 and the accused, throwing a serious doubt about the motive aspect itself. He would also submit that except P.W.2 and P.W.3, no other witness has spoken about the presence of P.W.10, Suganya. According to the learned counsel, Suganya was introduced at a later point of time and is only a chance witness. He would also submit that even P.W.2 in her deposition was not categorical as to referring the accused, as she has merely stated that "xU egh; FHe;ijia J}f;fpl;L Xluh;f". The above sentence would refer to number of persons and not a single person and therefore she has not come forward with true version as to the real accused. To support the said contention, the learned counsel would again draw our attention to the evidence of P.W.1, who stated that P.W.2 had shouted "FHe;ijia J}f;fpl;Lg;nghapl;lh;f". Therefore, the learned counsel submitted that the very origin of occurrence in the house of P.Ws.2 & 3 is doubtful. In support of his submission, he would also rely upon the evidence of P.W.6 and submit that even though P.W.6 has spoken about the accused kidnapping the deceased and running away from the place along with others, none of them have prevented the accused from doing so, and such conduct throws a doubt as to her presence. She was also not categorical as to the involvement of the accused in the crime, as she has specifically stated in the cross examination that "vjphp FHe;ijiaj; J}f;fpf;bfhz;L nghFk;nghJ ahh; vd;W bjhpatpy;iy".

12. So far as the evidence of P.W.10 is concerned, the learned counsel would submit that her very presence itself is doubtful, as none of the witnesses have spoken about her presence except P.Ws.2 & 3, and it was correctly suggested to her that at the time when the occurrence had taken place, she was in the house of another sister namely, Lakshmi.

13. As far as the submission relating to the medical evidence is concerned, the learned counsel would draw our attention to the evidence of P.W.5, the post-mortem doctor and the post-mortem certificate, Ex.P-3 issued by him. He would submit that though the doctor, P.W.5 has noted in the post-mortem certificate that the injury no.2 is fatal and the deceased would appear to have died of head injuries, the learned counsel would submit that injury no.2 is only an abrasion and it could not have been caused by a brick stone as spoken to by the prosecution. In view of the above contradictions, the learned counsel would submit that there are inconsistencies and infirmities in the evidence of the prosecution witnesses and hence the accused is entitled to the benefit of doubt.

14. Per contra, the learned Additional Public Prosecutor has submitted that the prosecution has established its case beyond reasonable doubt. The evidence of P.W.2 in implicating the accused for kidnapping the deceased in spite of the protest after stating that he will do away the child to death is corroborated by the evidence of P.Ws.4,6 & 8. He would also submit that the evidence of P.Ws.6 & 10 also shows that the child was kidnapped by the accused. He would also refer to the recoveries and identification, more particularly, with reference to M.O.4, the cloth of the child, M.O.5, C.D.player, M.O.6, discs and M.O.7, jeans pant, which were seized on the basis of the admissible portion of the confession of the accused. Moreover, the learned Additional Public Prosecutor would strongly rely upon Ex.P-14, the inquest report and contend that at the earliest point of time, the Investigating Officer was made known of the entire evidence as spoken to by the witnesses viz., P.Ws.2,3,4,6,8,10 & 13. Therefore, the conviction and sentence imposed on the accused are sustainable.

15. We have given our anxious consideration to the above contentions. So far as the motive aspect is concerned, the evidence of P.W.2 is referable. Before we consider the said evidence, we are inclined to refer to one fact that P.W.2, who is the wife of P.W.3, has come to the Court with clean hands by stating that the accused had illicit intimacy with her for quite sometime and that she had relationship with the accused even before her marriage and the accused was also visiting the house of P.W.2 frequently. In the normal course, such illicit intimacy will not be revealed by the women folk and in this case, as the accused had actually kidnapped her child, she was forced to reveal the relationship of illicit intimacy with the accused. In her evidence, she has categorically stated as to what had happened between her and the accused on the fateful day in the following words:-

16. It is her categorical evidence that till the time of occurrence, the illicit intimacy between the accused and P.W.2 was not made known to anyone including her husband. Learned counsel for the appellant contended that the above evidence of P.W.2 as to the illicit intimacy is not corroborated by any of the witnesses. In our opinion, the facts and circumstances have not made the other witnesses to speak about the illicit intimacy that too, when they were not actually aware of the same. But the fact remains that P.Ws.1,4 & 8 have spoken that the accused used to come to the house of P.W.2 frequently and used to stay there for sometime. In fact, this is also clear from the evidence of P.W.3, who has stated that the accused was his friend and he used to come to his house frequently. Therefore, when the evidence of P.W.2 is considered along with the evidence of P.Ws.1,3,4,6 & 8, we have no reason to discard the evidence of P.W.2 as to the illicit intimacy between herself and the accused and consequently, the compulsion on the part of the accused over P.W.2 to come along with him and the subsequent resistance by P.W.2, which resulted in the accused kidnapping the child.

17. So far as the contradiction pointed out by the learned counsel for the appellant in the First Information Report is concerned, here again the evidence of P.W.2 is very categorical that after the accused took away the child, she shouted and P.Ws.1,4 & 6 came there. Only when she came to know that her child was found dead inside the ice factory, she went to that place and started crying and thereafter she swooned. It is normal human conduct for the parents namely, P.Ws.2 & 3 in first expressing their sadness and staying near the body, instead of making an attempt to lodge the complaint. It is quite natural that in such event, P.W.1 after informing P.W.4, who is none other than the sister of P.W.3, and P.W.2, has gone to the police station. Since P.W.1 went to the police station, it is again quite natural that neither P.W.2 nor P.W.3 has made any attempt to go to the police station for lodging the complaint. Much was argued as to the non-mentioning of the name of the accused in the First Information Report. We are at loss to understand the said submission for the simple reason that the evidence of P.W.2 is categorical for implicating the accused. Of course, it would have further strengthened the prosecution case had P.W.1 mentioned the name of the accused in the First Information Report, instead of referring that the child was killed by a known person. It is common understanding that normally in the First Information Report, only when the assailants names are not known, it would be recorded like that, but when the assailants names are known, it should have been mentioned. But, in our opinion, taking into consideration of the totality of the circumstances, it is a minor lapse committed by the Investigating Officer, P.W.14 while he recorded the complaint and the same will not throw any doubt on the very complaint itself in view of the overwhelming materials placed before the Court.

18. Moreover, neither the non-mentioning of the name nor the failure on the part of P.W.2 or P.W.3 to have lodged a complaint had been controverted with the witnesses during cross examination or not even the Investigating Officer, P.W.14. In such circumstances, we are not inclined to accept the submission of the learned counsel for the appellant that in view of the fact that the First Information Report does not contain the name of the accused and in view of the fact that the same was not given either by P.W.2 or P.W.3, the entire case of the prosecution should be disbelieved.

19. Coming to the submission as to the medical evidence, Ex.P-3 is the post-mortem certificate, which refers to injury no.2 being a graze abrasion 14 cm in length on the left forehead in the upper end to right cheek in the lower end to an extent of 7-9 cm on left side of face involving left forehead, left eye, left side and tip of nose, left cheek, left side of upper lip, left ear upto left occipital scalp and temporal scalp with serrated edges seen on left side of face and the direction of the abrasion was downwards, backwards and leftwards. Referring to the above injury, P.W.5, the post-mortem doctor has categorically opined that the deceased would appear to have died of head injuries, more particularly, due to injury no.2 which is fatal and the death could have resulted instantaneously. P.W.5 has further opined that the outer appearance of injury no.2 is graze abrasion and after dissection of the injury, he found skull and mandible fracture which, according to him, was fatal. He has further opined that injury no.2 would have been caused by a material like M.O.1 by hitting the child over the head. Here again, we must keep in mind that the deceased was just five months old at the time of occurrence and even a slightest hit on the head may be fatal and would result in instantaneous death. The evidence of P.W.5 as to the nature of injuries and to the cause of death supported by the post-mortem certificate, Ex.P-3 would undoubtedly support the case of the prosecution and therefore we find no contradiction in the medical evidence with that of the other evidence as submitted by the learned counsel for appellant.

20. The other contention is as to the failure on the part of the prosecution to file the report of the fingerprint expert in regard to the seizure of C.D.player and discs, M.O.5 & 6 series as spoken to by P.W.10. It is true that P.W.10 has stated that the accused played the C.D.player and disc and therefore the case of the prosecution could have been further strengthened if the report of the fingerprint expert in M.Os.5 & 6 was also produced. The evidence of P.W.14, the Investigating Officer is categorical that after the recovery of M.Os.5 & 6, they were sent for report of the fingerprint expert, but, nevertheless, the report has not been received. In our opinion, non filing of the said report will not throw any doubt on the prosecution case, as we have found that the prosecution has proved its case with overwhelming materials.

21. Coming to the submission of the learned counsel for appellant as to the statement of the accused under Section 313 of the Criminal Procedure Code that only to conceal the illicit intimacy between P.W.2 and one Guru he has been falsely implicated in this case is concerned, in our opinion, the said statement does not help the accused in any way. Even assuming if there was any illicit intimacy between the said Guru and P.W.2, that will not in any way help the accused to claim that the prosecution case is false unless he comes forward with a further case that because he saw such illicit intimacy the case is foisted on him to conceal such illicit intimacy between P.W.2 and the accused. Hence the statement made by the accused under Section 313 of the Criminal Procedure Code, which was referred to by the learned counsel for appellant at page 71 of the typed-set of papers, is not of any assistance.

22. Apart from our discussion, we find every reason to accept the submission of the learned Additional Public Prosecutor in placing reliance on the inquest report. We have read the inquest report in its entirety. The occurrence was at 4.00 a.m., on 7.12.2004 and the complaint was received at 6.30 a.m., and the inquest was conducted at 7.30 a.m., i.e., within a period of one hour. Even at the earliest point of time, the Investigating Officer has referred to the implication of the accused in so many words. The inquest report refers to the fact that the accused came to the house of P.W.2 on the morning of 7.12.2004 and the compulsion over P.W.2 to leave the house and the consequential resistance by P.W.2, which had led the accused to kidnap the child forcibly. It also refers to the illicit intimacy between the accused and P.W.2. It is the specific case of the prosecution through the Investigating Officer, P.W.14 that during the course of inquest, P.Ws.2,3,4,6 & 10 were examined.

23. The evidence of P.W.2 to implicate the accused is further strengthened by the evidence of P.W.10, who is the sister of P.W.2. Of course, the learned counsel for appellant has submitted that the presence of P.W.10 itself is doubtful, as no other witness has spoken to about her presence except P.W.2 and only a passing reference as to her presence has been made by P.W.3. Here again P.W.2s evidence is referable, as she has stated that P.W.10 was residing along with them in the same house, which is amply corroborated by the evidence of P.W.3. P.W.3 has also gone to the extent of stating that just prior to the occurrence, P.Ws.2,3 & 10 were watching television. Hence, we have no doubt in our mind that P.W.10 was also an eye-witness to the fact that the accused came to the house and forced P.W.2 to come along with him and when the same was resisted by P.W.2, the accused had forcibly kidnapped the deceased after saying that he will kill the children and her husband. This version of P.W.10 has not been controverted by the defence in the cross examination by putting any specific question.

24. Coming to the evidence of P.W.13, though P.W.13 has turned hostile, he has stated in chief examination that he saw the accused kidnapping the deceased-child and running towards the ice factory, where the body of the child was found. He has further stated that at the time when he saw the accused, the accused was wearing a blue colour jeans pant, M.O.7, which was recovered in pursuance of the admissible portion of the confession made by the accused. Though P.W.13 is stated to have turned hostile, the above portion of her evidence has not been controverted in cross examination and was allowed to stand as an evidence. While we consider the entire evidence, as discussed above, we are of the considered view that the accused, who came to the house of P.W.2, had forcibly kidnapped the deceased-child and had committed the gruesome murder.

25. For all the above reasons, we find no infirmity in the judgment of the learned trial Judge and the conviction and sentence imposed on the appellant are confirmed. The criminal appeal is dismissed.