SELVARAJ @ CHINNAPAIYANversusSTATE REPRESENTED BY INSPECTOR OF POLICE

•                    [2014] 11 S.C.R. 229


             SELVARAJ @ CHINNAPAIYAN                               A
                           v.
    STATE REPRESENTED BY INSPECTOR OF POLICE
           (Criminal Appeal No. 892 of 2009)
                   DECEMBER 09, 2014
                                                                   B
    [VIKRAMAJIT SEN AND PRAFULLA C. PANT, JJ.]

     Penal Code, 1860 - s. 302 - Prosecution case that
appellant-father strangulated the child and three days later the
child died - Conviction of appellant uls. 302 by courts below      C
- On appeal, held: On facts, prosecution could not
successfully prove homicidal death of the child and the
charge of offence punishable u/s. 302 as against the appellant
who is in jail for about eight years - Thus, the courts below
erred in holding that the charge stood proved against the          D
appellant - Order of conviction and sentence against the
appellant set aside.

     Allowing the appeal, the Court

     HELD: 1.1. In the instant case, PW 2-mother of the            E
deceased, who is the key witness of the case, though
supported the prosecution story in her examination-in-
chief, but turned hostile in the cross-examination. PW 3-
mother-in-law of the appellant and PW 10-sister of the
informant also turned hostile in her cross-in-examination.         F
Even the homicidal death of the child is not clear,
particularly, in view of the final opinion of the Medical
Officer-PW-12 after receiving the Forensic report. In the
autopsy report there is nothing on record suggesting
strangulation or asphyxia. PW-5 and PW-6 (both witnesses           G
of recovery memo) did not support the prosecution case
even in their examination-in-chief. PW 4-nurse, who could
said to be the only independent witness, too turned hostile
to the prosecution. There was no evidence on record
                              229                                  H
    230       SUPREME COURT REPORTS               [2014] 11 S.C.R.
                                                                     '!.
A showing that when the child was admitted in the hospital
  where she died, her medico legal was got done. It is not at
  all explained by the prosecution that PW-2, PW-3 and PW-
  10 who said to have witnessed the accused committing
  the crime, and the incident had taken place in the parental
B house of the informant, why not the accused was
  apprehended then and there. Prosecution tried to develop
  the story that the accused was strangulating the child with
  the gunny wire and was simultaneously inserting paddy
  seeds in the mouth of the infant. Both these modes
c simultaneously appear to be unnatural. [Para 12-14, 17-22]
  [235-0-F; 236-E-G; 237-8-E]

       1.2. On consideration of all facts, it cannot be said that
  prosecution successfully proved charge of offence
  punishable under Section 302 IPC as against the
D appellant who is languishing in jail for about eight years.
  The trial court and the High Court erred in law in holding
  that the charge of offence punishable under Section 302
  IPC stood proved against the appellant. Conviction and
  sentence recorded against the appellant under Section
E 302 IPC is set aside. [Para 23-25] [237-F-H; 238-A]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 892 of 2009.

F       From the Judgment & Order dated 08.01.2008 of the High
    Court of Judicature at Madras in Crl. A.No. 337 of 2007.

          Jayanth Muthraj, C.K. Sasi for the Appellant.

      M. Yogesh Kanna, Sarth Kumaran, Jananai for the
G Respondent.

          The Judgment of the Court was delivered by

        PRAFULLA C. PANT, J. 1. This appeal is directed against
    judgment and order dated 8.1.2008 passed by the High Court
H
•sELVARAJ @CHINNAPAIYAN v. STATE REPRESENTED 231
   BY INSPECTOR OF POLICE [PRAFULLA C. PANT, J.]

  of Judicature at Madras in Criminal Appeal No. 337 of 2007          A
  whereby said Court has dismissed the appeal of accused-
  appellant Selvaraj@ Chinnapaiyan, who was convicted by the
  trial court under Section 302 of Indian Penal Code, 1860 (IPC),
  and sentenced to undergo imprisonment for life and directed
  to pay fine of Rs.1,000/-, in default of payment of which he was    B
  directed t6 undergo rigorous imprisonment for a further period
  of three months.

      2. Heard learned counsel for the parties and perused the
  papers on record.                                                   c
         3. Prosecution story, in brief, is that accused-appellant
   Selvaraj @ Chinnapaiyan is husband of PW-2 Selvi. He
   belongs to Vellala Gounder Community, and PW-2 Selvi
   belongs to Vanniayar Community. The two developed intimacy.
   This was not liked by Sundarammal (mother of Selvaraj). As         0
   such the accused-appellant Selvaraj and PW-2 Selvi left the
   village, and started living as husband and wife in Bangalore.
   From their relationship PW-2 Selvi conceived a baby.
   Sundarammal, when came to know of it, wanted to get the baby
   aborted but Selvi declined to do so. On this Sundarammal           E
   approached PW-4Chandra, a nurse, and sought her help to get
   the baby aborted. Selvaraj also joined his mother in asking
   Selvi to get the pregnancy terminated. This made Selvi
   apprehensive of threat to her life and that of her child in the
   womb. She went to her parents house and stayed there. After        F
   sometime, a Panchayat of the villagers was held and marriage
   was arranged between Selvaraj and Selvi whereafter the
   accused-appellant (Selvaraj) again left for Bangalore. While he
 · was in Bangalore, Selvi delivered a female child on 27.1.2003
   in her parental village about which the appellant and his mother   G
   were informed. On 28.2.2003, the appellant Selvaraj came to
   his village from Bangalore. On 3.3.2003 at about 8.00 p.m.,
   according to the prosecution, the appellant entered inside the
   house of PW-2 Selvi, raised the. volume of radio and closed
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    232      SUPREME COURT REPORTS


A the room. From there he went to thatched shed where the young
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                                                  (2014) 11 S.C.R.



  baby was sleeping. On hearing the cries of the baby, PW-2
  Selvi, PW-3 Rajammal (mother of Selvi) and PW-10
  Chinapappa (sister of Selvi), who were standing outside the
  house, rushed to the thatched shed and saw Selvaraj
B administering paddy seeds in the mouth of the child, and
  strangulating him with a gunny wire. PW-2 Selvi shouted and
  attempted to save the child. All the three witnesses, i.e., Selvi
  (PW-2), Rajammal (PW-3) and Chinapappa (PW-10) took the
  child to PW-4 Chandra (a nurse). She (PW-4) advised above
c three eye witnesses to take the child to a doctor at
  Marandehalli, who, in turn, directed to take the child to
  Government hospital, Dharmapuri. The baby was admitted in
  the Government Hospital, Dharmapuri on 6.3.2003 at 10.00
  a.m., but died at 5.25 p.m. on the same day.
D
        4. A First Information Report (Ext. P-15) was lodged by
  PW-2 Selvi at 11.00 p.m. on the very day (6.3.2003) at Police
  Station Marandehalli, which was registered as Crime No. 110
  of 2003 relating to offence punishable under Section 302 IPC
E against the two accused, namely, Selvaraj @ Chinnapaiyan and
  his mother Sundarammal. Crime was investigated by PW-13
  Inspector Thangavel, who interrogated the witnesses and took
  the body of the female child in his possession, sealed it and
  sent for autopsy. PW-1 Dr. Balasubramaniam conducted post
F mortem examination and prepared the autopsy report (Ext. P-
  4 ). He observed a linear blackish contusion of size 15mm x
  1mm extending from left to right side of neck, hyoid bone found
  intact, rit:; were intact, no foreign body found in the lungs, liver
  congested, stomach empty, bladder empty. PW-1 Dr.
  Balasubramaniam preserved a piece of skin from neck for
G forensic analysis and also took pieces of intestine, liver and
  kidney and preserved the same for forensic analysis. He
  recorded opinion on 7.3.2003 (the day on which autopsy was
  done) that "The deceased would appear to have died about 12-
  24 hrs prior to autopsy. Opinion about the cause of death
H
.ELVARAJ @ CHINNAPAIYAN v. STATE REPRESENTED 233
   BY INSPECTOR OF POLICE [PRAFULLA C. PANT, J.]
 reserved pending chemical analysis." The Forensic Science          A
 Laboratory, Vellore reported, after examination of pieces of
 intestine, liver, kidney and skin that there was no poison found
 in any of the above articles. After receiving the report of
 Forensic Science Laboratorv. PW-1 Dr. Balasubramaniam
 gave final opinion on 16.11.2003 endorsing "NO DEFINITE            B
 OPINION COULD BE GIVEN FOR THE DEATH. The
 deceased child might have died due to SUDDEN DEATH
 SYNDROME, a medical entitv." On completion of investigation,
 the Investigating Officer submitted charge-sheet against two
 accused, namely, the appellant Selvaraj @ Chinnapaiyan in          C
 respect of offence punishable under Section 302 IPC, and his
 mother Sundarammal for her trial regarding offence punishable
 under Section 302 read with Section 109 IPC.

      5. After giving necessary copies, as required under           D
 Section 207 of Code of Criminal Procedure, and hearing the
 parties, learned Additional Sessions Judge, Fast Track Court,
 Dharmapuri, framed charge in respect of offence punishable
 under Section 302 IPC against the appellant Selvaraj, and the
 charge under Section 302 read with Section 109 IPC against         E
 Sundarammal, both of whom pleaded not guilty and claimed
 to be tried.

      6. Prosecution got examined PW-1 Dr. Balasubramaniam
 (who conducted post mortem examination), PW-2 Selvi
 (informant and mother of the deceased), PW-3 Rajammal              F
 (mother of the informant), PW-4 Chandra (nurse), PW-5 J.
 Kuppuraj (witness of recovery memo - gunny wire), PW-6
 Murugavel (another witness of the recovery memo), PW-7
 Dhotta Pappan, PW-8 Barchulla (Head Constable who took the
 body for autopsy), PW-9 Thathaki (Deputy Nazir of Munsiff          G
 Court, who sent viscera for medical analysis under orders of
 the Magistrate), PW-10 Chinnapappa (sister of the informant),
 PW-11 Sub-Inspector Paulraj (who registered Crime No. 110
 of 2003 at the Police Station), PW-12 Dr. Vallinayagam
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    234       SUPREME COURT REPORTS                [2014] 11 S.C.R.


    (Director of the Institute of Forensic Medicine), and PW-13
                                                                         •
    Inspector Thangavel (who investigated the crime).

        7. The oral and documentary evidence appears to have
  been put to both the accused under Section 313 Cr PC, in reply
B to which they alleged that the incriminating part of the evidence
  is false. However, the trial court, after hearing the parties, found
  both the accused, Selvaraj and his mother Sundarammal, guilty
  of the charge framed against them and sentenced each of the
  accused to imprisonment for life and directed to pay fine of
c Rs.1,000/-, in default of payment of which the defaulter convict
  was required to undergo further imprisonment for three months.

      8. Aggrieved by said judgment and order dated 5.3.2007,
  passed by the Additional Sessions Judge, Dharmapuri in
  Sessions Case No. 193 of 2006, both the convicts preferred
D appeal before the High Court of Judicature at Madras. The High
  Court, after hearing the parties, found that charge of offence
  punishable under Section 302 read with Section 109 IPC
  against co-accused Sundarammal is not proved and, as such,
  conviction and sentence recorded against her was set aside.
E However, the High Court found no merit in the appeal of the
  accused Selvaraj, and dismissed the same. Hence this appeal
  before us.

         9. Before further discussion we think it just and proper to
F   mention the opinion of PW-1 Dr. Balasubramaniam recorded
    by him in the post mortem report (Ext .. P-4). On 7.3.2003 he
    gave his opinion after autopsy as under: -·

          "The deceased would ai)pear to have died about 12-24
          hrs prior to autopsy. Opinion about the cause of qeath
G
          reserved pending chemical analysis."
    '  On re.reipt of the report from the Forensic Science
  Laboratoryitegarding the,,:ireserved items of viscera and the
  skin, PW-1 Dr. Balasubramaniam gave final opinion on
H 16.11.2003 which reads as under: -
•   SELVARAJ @ CHINNAPAIYAN v. STATE REPRESENTED 235
     BY INSPECTOR OF POLICE [PRAFULLA C. PANT, J.]
        "NO DEFINITE OPINION COULD BE GIVEN FOR THE                        A
        DEATH. The deceased child might have died due to
        SUDDEN DEATH SYNDROME, a medical entity."

         10. As such, on going through the medical evidence and
    the statement of PW-12 Dr. Vallinayagamal Director, Institute          B
    of Forensic Medicine, we are of the view that the above report
    is not suggestive of homicidal death of the child, though the
    possibility of such death cannot be ruled out.

         11. Now, we have to see from the oral testimony of the
    witnesses whether or not it establishes commission of murder           C
    by the appellant Selvaraj of his 39 days old female child.

           12. PW-2 Selvi (mother of the deceased). who is the key
    witness of the case. though supports prosecution storv in her
    examination-in-chief. but in the cross-examination she has said.       D
    "The child died due to illness". It is further stated by her that it
    is correct to state that her husband did not come to her house
    till the death of her child. As such this key witness turned hostile
    in the cross-examination.
                                                                           E
         13. Similarly, PW-3 Rajammal (mother-in-law of the
    appellant) has also turned hostile in her cross-examination, and
    stated that it is correct to state that the child died because of
    sickness. She also further told that it is correct to state that her
    son-in-law did not come even after death of the child.
                                                                           F
         14. Also PW-10 Chinapappa (sister of the ioformant) has
    made similar statement in her cross-examination corroborating
    that the child died because of illness. As such, all the three
    alleged eye witnesses took somersault in the cross-
    examination, and their testimony requires to be scrutinized with       G
    great caution.

         15. It is argued on behalf of the State of Tamil Nadu that
    since the eye witnesses have been won over by the accused,
    as such, their statements in cross-examination cannot be               H
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    236      SUPREME COURT REPORTS                (2014] 11 S.C.R.


    believed. On the other hand, on behalf of the appellant it is
                                                                         •
    contended that once the key witnesses have turned hostile, their
    evidence cannot be relied upon to record the conviction.

        16. It is settled principle of law that benefit of reasonable
8 doubt is required to be given to the accused only if the
  reasonable doubt emerges out from the evidence on record.
  Merely for the reason that the witnesses have turned hostile in
  their cross-examination, the testimony in examination-in-chief
  cannot be outright discarded provided the same (statement in
C examination-in-chief supporting prosecution) is corroborated
  from the other evidence on record. In other words, if the court
  finds from the two different statements made by the same
  accused, only one of the two is believable. and what has been
  stated in the cross-examination is false. even if the witnesses
  have turned hostile, the conviction can be recorded believing
0
  the testimony given by such witnesses in the examination·-in-
  chief. However, such evider>r:t: is required to be examined with
  great caution.

        17. In ;:1e present case, as discussed above, even the
E homicidal death of the child is not clear, particularly, in view of
  the final opinion of the Medical Officer (PW-12) after receiving
  the Forensic report. Even in the autopsy report there is nothing
  on record suggesting strangulation or asphyxia.

F        18. Apart from the above, it is relevant to mention here that
    PW-5 J. Kuppuraj and PW-6 Murugavel (both witnesses of
    recovery memo) have not supported the prosecution case even
    in their examination-in-chief.

G      19. Nay, PW-4 Chandra (nurse). who could be said to be
  only independent witness of this case, too turned hostile to
  prosecution. It is pertinent to mention here that though PW-2,
  PW-3 and PW-10 turned hostile after ten days of their
  examination-in-chief, i.e., for which their cross-examination was
H deferred, this witness (PW-4) has turned hostile to prosecution ,
•   SELVARAJ @ CHINNAPAIYAN v. STATE REPRESENTED 237
     BY INSPECTOR OF POLICE [PRAFULLA C. PANT, J.]

    on the very day (22.1.2007), i.e., date of examination-in-chief       A
    of other eye witnesses.

         20. Not only this, there is no evidence on record showing
    that when the child was admitted in the hospital in Dharmapuri
    where she died, her medico legal was got done.                        B

         21. Lastly, it is not at all explained by the prosecution that
    PW-2, PW-3 and PW-10 who said to have witnessed the
    accused (Selvaraj) committing the crime, and the incident had
    taken place in the parental house of the informant, why not the       C
    accused was apprehended then and there. Not a single witness
    has stated that the accused succeeded in running away from
    the place of incident.

         22. We have also considered the prosecution story from
    the angle of probability. Prosecution has tried to develop the        D
    story that the accused (SelvaraD was strangulating the child with
    the gunny wire and was simultaneously inserting paddy seeds
    in the mouth of the infant. In our opinion, both these modes
    simultaneously appear to be unnatural. particularly, in view of
    the fact that the incident had occurred on 3.3.2003 and the child     E
    died on 6.3.2003. i.e., after a period of three days. PW-4
    Chandra (nurse) to whom child was taken after the incident has
    stated that there was nothing in the mouth of the child when she
    saw her. She further stated that the child was looking good.
                                                                          F
         23. Consideration of all the above facts takes us to the
    conclusion that in the present case it cannot be said that
    prosecution has successfully proved charge of offence
    punishable under Section 302 IPC as against the appellant who
    is languishing in jail for about eight years.

         24. For the reasons, as discussed above, we are of the
    view that the trial court and the High Court have erred in law in
    holding that the charge of offence punishable under Section 302
    IPC stood proved against the appellant Selvaraj.
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    238          SUPREME COURT REPORTS          [2014] 11 S.C.R.


         25. Therefore, the appeal is allowed. Conviction and
                                                                       •
    sentence recorded against the appellant Selvaraj under Section .
    302 IPC is hereby set aside. He shall be set at liberty if not
    required in connection with any other crime.

B   Nidhi Jain                                      Appeal allowed.