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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 892  OF 2009

Selvaraj @ Chinnapaiyan ... Appellant

Versus

State represented by Inspector of Police         … Respondent

J U D G M E N T

PRAFULLA C.  PANT, J.

This  appeal  is  directed  against  judgment  and  order  

dated 8.1.2008 passed by the High Court of Judicature at  

Madras  in  Criminal  Appeal  No.  337 of  2007 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

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was directed to undergo rigorous imprisonment for a further  

period of three months.

2. Heard learned counsel for the parties and perused the  

papers on record.

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 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  approached  PW-4Chandra,  a  nurse,  and

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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 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  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 the room.  From  

there he went to thatched shed where the young 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 administering paddy seeds  

in  the  mouth  of  the  child,  and  strangulating  him  with  a

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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 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.

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  

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,

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sealed it and sent for autopsy.  PW-1 Dr. Balasubramaniam  

conducted  post  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, ribs 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 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 reserved pending  

chemical analysis.”  The Forensic Science 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  

Laboratory, PW-1 Dr. Balasubramaniam gave final opinion on  

16.11.2003  endorsing  “NO  DEFINITE  OPINION  COULD  BE  

GIVEN FOR THE DEATH.  The deceased child might have died

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due to SUDDEN DEATH SYNDROME, a medical entity.”  On  

completion  of  investigation,  the  Investigating  Officer  

submitted  charge-sheet  against  two  accused,  namely,  the  

appellant  Selvaraj  @  Chinnapaiyan  in  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  

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 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

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(informant  and  mother  of  the  deceased),  PW-3  Rajammal  

(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 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 (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 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

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Sundarammal, guilty of the charge framed against them and  

sentenced each of the accused to imprisonment for life and  

directed to pay fine of 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  

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.  However, the High Court found no merit in the appeal  

of the accused Selvaraj, and dismissed the same.  Hence this  

appeal before us.

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9. Before further discussion we think it just and proper to  

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 appear to have died  about 12-24 hrs prior to autopsy.  Opinion  about the cause of death reserved pending  chemical analysis.”   

On  receipt  of  the  report  from  the  Forensic  Science  

Laboratory regarding the preserved items of viscera and the  

skin,  PW-1  Dr.  Balasubramaniam  gave  final  opinion  on  

16.11.2003 which reads as under: -

“NO DEFINITE OPINION COULD BE GIVEN FOR THE  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 of Forensic Medicine, we are of the view that the

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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 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 story in her  

examination-in-chief,  but in the cross-examination she has  

said, “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.

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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.

14. Also  PW-10  Chinapappa  (sister  of  the  informant)  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 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

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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  

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 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  the  

testimony given  by  such  witnesses  in  the  examination-in-

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chief.  However, such evidence is required to be examined  

with great caution.

17. In  the  present  case,  as  discussed  above,  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.   Even in the autopsy report  

there  is  nothing  on  record  suggesting  strangulation  or  

asphyxia.

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.

19. Nay,  PW-4 Chandra (nurse),  who could be said to be    

only independent witness of this case, too turned hostile to

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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  deferred,  this  witness  (PW-4)  has  turned  hostile  to  

prosecution  on  the  very  day  (22.1.2007),  i.e.,  date  of  

examination-in-chief 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.

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 accused was apprehended then and there.  Not a  

single  witness  has  stated  that  the  accused  succeeded  in  

running away from the place of incident.

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22. We have also considered the prosecution story from the  

angle of probability.   Prosecution has tried to develop the  

story that the accused (Selvaraj) 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 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.

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

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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.

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.

………………………………J. [Vikramajit Sen]

………………………………J.                                                  [Prafulla C. Pant]

New Delhi; December 09, 2014.

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