IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.161 OF 2008

Balaji                   … Appellant Vs.

State Rep. by Insp. Of Police … Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. This appeal is directed against the judgment  

and order dated 22nd February, 2007, passed by the  

Madurai Bench of the Madras High Court confirming  

the  conviction  and  sentence  passed  against  the  

appellant  under  Section  302  of  the  Indian  Penal  

Code, mainly on the evidence of PW.2, the daughter  

of the accused No.2 who was ten years old on 23rd

October, 1999, when the incident is said to have  

occurred.

2. The second accused in the trial, Dhanalakshmi,  

is the wife of the deceased, Chelliah Naicker.  The  

first accused is the nephew of Chelliah Naicker.  

According  to  the  prosecution  case,  the  first  

accused and the second accused developed an illicit  

relationship.  The first accused would visit the  

house  of  the  deceased  carrying  liquour  with  him  

which  he  gave  to  the  deceased,  and,  thereafter,  

indulge  in  illicit  intimacy  with  the  second  

accused.  PW.2, Sundari, referred to hereinabove,  

is  the  child  of  the  second  accused  and  the  

deceased.   At  the  time  of  the  incident,  the  

deceased  and  the  first  accused  and  Sundari  were  

residing in a hut belonging to PW.4 at Rajiv Nagar,  

Tuticorin.  According to the prosecution, on 23rd  

October, 1999, the first accused came to the house  

of the deceased along with a bottle of liquour as  

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usual and handed over the same to the deceased.  

Thereafter,  after  having  illicit  relations  with  

each other, both the accused decided to do away  

with  the  deceased  and  in  furtherance  of  their  

object they took a nylon rope and strangulated the  

deceased.  Immediately, thereafter, they dug a hole  

in the floor of the hut and buried the dead body in  

the said hole.  It is the prosecution case that the  

entire incident had been witnessed by Sundari, who  

was threatened by the accused that if she revealed  

the occurrence to anybody, she would have to face  

dire consequences.  One Papammal, who was examined  

as  PW.3,  is  also  alleged  to  have  witnessed  the  

digging of the hole by the accused persons and on  

being questioned, the accused persons are said to  

have informed him that they had killed the deceased  

as he was a continuous menace for them.   

3. It appears that on 3rd November, 1999, PW.1,  

the father of the deceased came over to the house  

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of  the  accused  No.2  and  asked  about  his  son’s  

whereabouts from PW.2, Sundari.  It also appears  

that Sundari narrated the entire incident to PW.1  

and also showed him the place where the deceased  

was buried.  Immediately thereafter, PW.1 and PW.2  

went to Muthaipuram Police Station and narrated the  

entire occurrence to the Sub-Inspector of Police,  

PW.13, and the same was reduced into writing and an  

FIR  was  prepared  registering  a  case  against  the  

accused persons under Section 302 IPC. Copies of  

the  same  were  sent  to  the  Judicial  Magistrate  

No.II, Tuticorin, the Tahsildar, Tuticorin and to  

the higher police officials.

4. On receipt of the aforesaid information, PW.16,  

the  Inspector  of  Police  attached  to  Muthaipuram  

Police Station, went to the place of occurrence at  

12.30  a.m.  and  deployed  police  security  at  the  

place of occurrence.  He returned to the spot at  

6.00 a.m. on 4th November, 1999 and with the help of  

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PW.6,  exhumed  the  body  of  the  deceased  in  the  

presence of witnesses and Panchayatars.  An inquest  

over the dead body was conducted by the Tahsildar  

and since the body had decomposed, on requisition,  

PW.7,  the  Doctor  conducted  post-mortem  on  the  

decomposed body.  From the post-mortem report it  

appears that the Doctor was of the opinion that the  

deceased had died on account of man-handling and  

throttling and that he must have died 10 to 15 days  

prior to the date of autopsy.  The skull of the  

dead  body  was  also  subjected  to  superimposition  

test by the Forensic Sciences department at Chennai  

and on examination of the bones and the skull, the  

opinion was that the skull could very well have  

belonged to the male individual, whose photograph  

was shown. On completion of investigation, final  

report was filed and the case was committed to the  

Court of Sessions, which, relying on the evidence  

of  PW.2,  found  both  the  accused  guilty  and  

sentenced them to life imprisonment.   

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5. The said judgment of conviction and sentence  

was  challenged  by  the  appellants  in  

Crl.A.(MD)No.858  of  2004  which,  as  indicated  

hereinbefore, was disposed of on 22nd February, 2007  

by the High Court by confirming the conviction and  

sentence awarded to the accused persons.

6. Of the two accused, the present appeal has been  

preferred only by accused No.1, Balaji.  The main  

challenge to the judgment of the trial court was  

with regard to the acceptance of the evidence of  

PW.2, Sundari, who was ten years old at the time of  

occurrence and 14 years old when she had deposed  

before the trial court.   

7. Learned  counsel  appearing  for  the  appellant  

contended  that  the  trial  court  should  have  

exercised great care and caution in considering the  

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evidence of PW.2, since the occurrence had taken  

place in the middle of the night and even after  

having allegedly witnessed the entire occurrence,  

she did not speak to anybody about the murder of  

her father by the accused till PW.1, her grand-

father, came to the house of the deceased on 3rd  

November, 1999.  Learned counsel urged that it was  

difficult to accept that for 10 days PW.2 would  

have remained silent and would not have informed  

anybody about the incident, particularly, when the  

body of her father was buried in the same house in  

which they had been residing.

8. It was also submitted on behalf of the accused  

that at the relevant time the accused No.2, along  

with PW.2, was staying with DW.1, the brother of  

the second accused, at Kattunaickanatti and were  

not residing at Rajiv Nagar with the deceased, as  

alleged by the prosecution.  Accordingly, neither  

the accused No.2 nor PW.2 were there in the place  

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of occurrence on 23rd October, 1999 and the evidence  

of  PW.2  was,  therefore,  liable  to  be  rejected.  

Learned counsel also urged that the trial court had  

wrongly placed reliance on the evidence of PW.3,  

although he had turned hostile.

9. Learned counsel also urged that the High Court  

affirmed the judgment of the Trial Court mainly on  

the evidence of PW.2, ignoring the fact that the  

First Information Report was filed after a period  

of 10 days within which time a plausible story was  

sought to be made out relying on the sole evidence  

of PW.2, who was only ten years old at the time of  

the incident.  Learned counsel submitted that the  

High  Court  merely  followed  the  reasoning  of  the  

Trial Court without considering the matter on its  

own merits.   

10. Learned counsel submitted that except for the  

evidence of PW.2, whose testimony was required to  

be treated with caution, there was nothing else in  

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the entire evidence to connect the appellant with  

the alleged offence.  

11. On  behalf  of  the  State,  Mr.  R.  Nedumaran,  

learned Advocate, while supporting the judgment of  

the trial Court, which was subsequently affirmed by  

the High Court, contended that the evidence of PW.2  

acquires  a  great  deal  of  relevance,  since  apart  

from  the  accused,  no  one  else  could  have  had  

knowledge  either  of  the  manner  in  which  the  

deceased was killed or that he was buried under the  

floor  of  the  hut  in  which  they  were  living.  

Learned counsel submitted that it is on account of  

the narration of the event by PW.2 to PW.1, the  

father  of  the  deceased,  that  the  investigating  

authorities were informed and they came and exhumed  

the body of the deceased.  

12. Mr. Nedumaran submitted that the aforesaid fact  

was sufficient to establish the truthfulness of the  

evidence of PW.2, notwithstanding her age, and such  

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fact had been duly noticed both by the Trial Court  

and the High Court.  

13. Mr. Nedumaran submitted that in the facts and  

circumstances,  as  indicated  hereinabove,  this  is  

not a case which called for interference by this  

Court.

14. We  have  carefully  considered  the  submissions  

made on behalf of the appellant and the State and  

we are convinced that no fault can be found either  

with the judgment of the Trial Court or the High  

Court in convicting the appellant for the offence  

with which he had been charged.

15. Having regard to the fact that the discovery of  

the body was made at the instance of PW.2. Sundari,  

the child witness, and the post-mortem conducted on  

the dead body was in consonance with the case made  

out by the prosecution, viz., that the deceased had  

been strangulated and throttled to death, there can  

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be no reason to disbelieve Sundari’s evidence which  

has withstood the test of cross-examination.

16. There is one more aspect of the matter which  

also bears consideration.  It cannot be forgotten  

that the accused no.2 is Sundari’s mother and no  

reason  is  forthcoming  as  to  why  Sundari  should  

implicate the accused no.2 in the murder of her  

father.  Even the attempt made on behalf of the  

accused  to  discredit  the  evidence  of  PW.2  by  

asserting  that  she  was  actually  living  at  

Kattunaickepatti  during  the  relevant  period  was  

considered and rejected both by the Trial Court and  

the High Court, as both the Courts chose to rely on  

the evidence of PW.2 that only after the death of  

her father she was taken to Kattunaickepatti and  

from there to Madras.

17. In view of the above, we are in agreement with  

Mr.  Nedumaran  that  no  interference  is  warranted  

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with the judgment of the Trial Court and the High  

Court, convicting the appellant herein.

18. The appeal is, accordingly, dismissed.         

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

…………………………………………J.  (R.M. LODHA)

New Delhi Dated: December 2, 2009

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