CDJ Law Journals

(Prayer: Criminal Appeal filed under Section 415 BNSS to call for the records pertaining to the judgment in S.C.No.154 of 2019 dated 25.07.2022 on the file of the Principal Sessions Judge, Kanniyakumari District, Nagercoil and set aside the same as illegal.)

B. Murugesan, J.

01. Challenging the judgment dated 25.07.2022 of the learned Principal Sessions Judge, Kanyakumari District @ Nagarcoil, hereinafter referred to as ‘the trial court’, in SC No.154/2019, convicting the appellant/sole accused and sentencing him for the offences punishable under S.364 IPC and S.302 IPC, the appellant/sole accused has preferred this criminal appeal.

02. Conviction and sentences would read as under:

Conviction Under	Imprisonment	Fine and Default Sentence
S.364 IPC	imprisonment for life	-
S.364 IPC	imprisonment for life	Rs.5,000/- i/d rigorous imprisonment for three months

Sentences have been ordered to run concurrently.

03. Case of the prosecution would run as under:

                     (a) Raina, a four years old boy, was the elder son of one Sahaya Sindhuja and her husband, Arokia Kevinraj. Accused is the brother of the mother in law of Sahaya Sindhuja. Sahaya Sindhuja borrowed a sum of Rs.2,00,000/- from the accused through one Mary Ammachi who is the younger maternal aunt of Arokia Kevinraj. Rs.54,000/- was the balance amount repayable by Sahaya Sindhuja. For the balance amount of Rs.54,000/-, the accused, Mary Ammachi, Xavier, Antrany and Selvaraj were harassing Sahaya Sindhuja on several occasions. Therefore, such balance amount of Rs.54,000/- had caused a strong enmity between the accused and Sahaya Sindhuja.

                     (b) Sahaya Sindhuja along with her husband and her 10 months old younger son was residing in a rental house at Leepuram. Sahaya Sindhuja had handed over her elder son, Raina, to her younger maternal aunt, Mary Sharmila @ Chandra, and therefore, her elder son, Raina, had been under the care and custody of Mary Sharmila @ Chandra at Arokiapuram situate within walking distance from Leepuram.

                     (c) On 17.03.2019 at about 8.00 am, while Raina was playing in front of the house of Mary Sharmila, the accused came by a bike, Yamaha Ray, bearing registration number TN 74 AU 5960, and kidnapped Raina. Mary Sharmila informed the occurrence to Sahaya Sindhuja. Immediately thereafter, Sahaya Sindhuja along with Mary Sharmila, Helan and Raj went to the house of the accused and asked the wife of the accused about the accused and her son, Raina. But, the wife of the accused expressed her ignorance. Consequently, they searched many places for Raina but they could not find him. On 17.03.2019 at about 4.00 pm, Sahaya Sindhuja lodged a complaint, Ex.P1, written by Prathiba, with Kanyakumari Police Station.

                     (d) Pursuant to the registration of FIR in Cr No.63/2019 on the file of Kanyakumari Police Station, IO (in charge) took the case for investigation on 17.03.2019, inspected the place of occurrence and prepared the observation mahazar and rough sketch in the presence of the witnesses, Arokia Hilton and Micheal. IO (in charge) examined the witnesses, Sahaya Sindhuja, Mary Sharmila, Helan and Raj and recorded their statements. IO (in charge) examined SI Subramanian, who registered FIR, and recorded his statement. Pursuant to the information from the office of the Superintendent of Police, IO (in charge) deputed SI Subramanian and HC Jeyabalan to bring the accused from the Railway Police Station, Palakkad, where he had been kept as a suspicious stranger.

                     (e) On 18.03.2019, IO took the case for investigation and waited for the production of the accused from Palakkad. On production of the accused and after due identification by Sahaya Sindhuja, IO arrested the accused on 18.03.2019 at about 4.00 pm and recorded his confession in the presence of VAO Francis Froshkan and his assistant, Rajasekar. Pursuant to such confession, IO, at the instance of the accused, took him to a coconut grove, belonging to one Rajamarthandan at Muhilan Kudiyerippu near Manakkudi. At the coconut grove, the accused identified a water tank where the dead body of Raina was found. IO conducted inquest on the dead body of Raina in the presence of panchayatars at about 6.45 pm and sent the dead body of Raina for post mortem. IO inspected the place of such second occurrence and prepared observation mahazar and rough sketch in the presence of Mohanraj and Dhas at about 7.00 pm. IO then collected the sample water from the water tank. Pursuant to the confession of the accused, IO, at the instance of the accused, took him to Durgadevi Malaraham, Beach Road Junction, Nagarcoil, where IO, under a seizure mahazar, recovered the bike, Yamaha Ray, identified by the accused, in the presence of VAO Francis Froshkan and his assistant, Rajasekar. After such recovery, IO caused the accused remanded to judicial custody. IO then filed a report altering S.363 IPC to S. 364A and S.302 IPC.

                     (f) IO examined the witnesses, Mohanraj, Dhas, Gladson and Prabaharan, and recorded their statements. IO sent the dress materials recovered from the dead body of Raina and the bike to the Judicial Magistrate under Form 95. On 25.04.2019, IO examined the witnesses, Arokia Kevinraj, Gracy, Pushpam, Victor Rani, and Surya, and recorded their statements. On 13.05.2019, IO examined the witnesses, Yudaadaasan, Amaladoss, Saleem @ George Antony Raj, Uma Maheswari and Pauldurai, and recorded their statements. On 20.05.2019, IO examined SI Subramainan, HC Jeyabalan and Devika, HC, JM I, Nagarcoil, and recorded their statements. On 25.05.2019, IO examined SSI Natarjan and SSI Jeyabal and recorded their statements. On 27.05.2019, IO examined Dr.Benjamin Jebaraj, who conducted post mortem, and the scientific officers, Velmurugan and Gurusamy, and recorded their statements. IO caused the recovered forensic materials sent for chemical examination. After such investigation, IO filed the final report on 12.07.2019 against the accused for the offences punishable under S.364, S.302 and S.201 IPC.

                     (g) On the complaint given by Sahaya Sindhuja, FIR had been registered on 22.03.2019 against Mary Ammachi, Xavier, Antrany, Selvaraj and the accused in Cr No.66/2019 on the file of Kanyakumari Police Station for the offences punishable under S.147, S.294(b), S.342, S.354, S.363, S. 506(2) S.4 TNPHW Act, S.4 TNPCEI Act r/w S.149 IPC, and after investigation, the IO herein has filed a final report against the said accused on 17.02.2020.

04. By an order in PRC No.36/2019, the case was committed by the Judicial Magistrate I, Nagarcoil, to the Principal Sessions Court, Kanyakumari District @ Nagarcoil, which then tried the case as the trial court.

05. On appearance of the accused before the trial court, the trial court satisfied that he was furnished free of cost with the copies of the records relied on by the prosecution, as required under S.207 CrPC.

06. Thereupon, the learned Public Prosecutor opened the case before the trial court, as under S.226 CrPC, and the learned counsel for the accused was also heard. On due consideration thereof, charges were framed by the trial court against the accused under S.364, S.302 and S.201 IPC, and the same were read over and explained to him by trial court, as under S.228 CrPC.

07. Accordingly, the accused was questioned by the trial court as to the charges framed against him, and he denied the charges as not true, pleaded not guilty and claimed to be tried.

08. Pursuant thereto, trial was ordered, and the prosecution produced evidence in support of its case, and therefore, the prosecution, before the trial court, examined PW1 to PW18 and marked Ex.P1 to Ex.P27 and MO1 to MO3 through the competent witnesses.

09. Details of the witnesses and the exhibits on the side of the prosecution before the trial court are as under:

                     (1) PW1 is Sahaya Sindhuja, the mother of the deceased Raina, who would speak about the money dispute with Mary Ammachi, the accused and others, the stay of the deceased Raina with Mary Sharmila, the information given by Mary Sharmila about the kidnapping committed by the accused, the visit to the house of the accused, the search for her son, the lodging of complaint, Ex.P1, the enquiry of the accused by the police, the visit to the coconut grove, the recovery of the dead body of her son and the registration of FIR on her complaint against Mary Ammachi and other for the earlier harassment relating to the money dispute. MO1 is the shirt of the deceased Raina and MO2 is his trouser.

                     (2) PW2 is Mary Sharmila who would speak about the money dispute between PW1 and Mary Ammachi, the stay of Raina with her, the kidnapping committed by the accused, the visit to the house of the accused, the search for Raina, the lodging of complaint by PW1, the enquiry of the accused by the police, the visit to the coconut grove, the recovery of the dead body, the identification of the bike and the identification of the dresses worn by Raina. MO3 is the bike used by the accused.

                     (3) PW3 is Helan who would speak about the money dispute between PW1 and Mary Ammachi, the kidnapping committed by the accused, the rushing of PW2, the chasing through the streets with PW1 and Raj, the visit to the house of the accused, the search for Raina, the lodging of complaint by PW1, the enquiry of the accused by the police, the visit to the coconut grove, the recovery of the dead body, the identification of the bike and the identification of the dresses worn by Raina.

                     (4) PW4 is Amaladhas who would speak about the occurrence on 17.03.2019 at about 10.00 am in the water tank where the accused was seen immersing the child (Raina) in water under the guise of grandfather giving his grandson a bath, the visit to the coconut grove on the next day, the recovery of the dead body and the identification of the accused.

                     (5) PW5 is Gracy who would speak of the money dispute between PW1 and Mary Ammachi and the recovery of the dead body of Raina.

                     (6) PW6 is Pauldurai, the watchman of the coconut grove, who would speak of the recovery of the dead body of Raina, the dimensions of the water tank and the volume of water in the water tank when the dead was recovered.

                     (7) PW7 is Micheal Raj who would speak of the preparation of observation mahazar and rough sketch referable to the place where the offence of kidnapping was committed. Ex.P2 is his signature in the observation mahazar.

                     (8) PW8 is Dhas who would speak of the preparation of observation mahazar and rough sketch referable to the coconut grove and the water tank, and of the preparation of seizure mahazar for taking sample water from the water tank. Ex.P3 is his signature in the observation mahazar and Ex.P4 is his signature in the seizure mahazar.

                     (9) PW9 is VAO Francis Froshkan who would speak about the confession of the accused, the visit to the coconut grove along with the accused and the police personnel, the recovery of the dead body of Raina, the conduct of inquest and the recovery of the bike at Durgadevi Malaraham, Beach Road Junction, Nagarcoil. Ex.P5 is his signature in the confession. Ex.P6 is his signature in the seizure mahazar for the bike. Ex.P7 is the admissible portion in the confession.

                     (10) PW10 is Dr.Benjamin Jebaraj who conducted the post mortem of the dead body of Raina. Ex.P8 is the post mortem report. Ex.P9 is his final opinion. Ex.P10 is chemical examination report. Ex.P11 is the requisition of the IO.

                     (11) PW11 is Dr.Gurusamy, the Scientific Officer, who conducted diatom test. Ex.P12 is his report.

                     (12) PW12 is Devika, HC, JM I, Nagarcoil, who would speak of sending MO1, MO2, the viscera and the sample water to RFSL, Thirunelveli. Ex.P13 and Ex.P14 are Forms 95. Ex.P15 is the requisition of IO. Ex.P16 is the letter/order of JM I.

                     (13) PW13 is SSI Nadarajan who would speak of the dispatch of FIR, the section alteration report and the dress materials to JM I, Nagarcoil, and the receipt of the report from RFSL, Thirunelveli.

                     (14) PW14 is SSI Jeyabal who would speak of his role in the inquest, in the post mortem and in the recovery of MO1 and MO2 after post mortem and also his role in sending MO1, MO2, the viscera and sample water to RFSL, Thirunelveli.

                     (15) PW15 is Head Constable Jeyapalan who would speak of the registration of FIR on the complaint, Ex.P1, and his role in bringing the accused from Railway Police Station, Palakkad.

                     (16) PW16 is SI Subramanian who would speak of the registration of FIR on the complaint, Ex.P1, and his role in bringing the accused from Railway Police Station, Palakkad. Ex.P17 is the FIR.

                     (17) PW17 is Shanthi, IO (in charge) who would speak of her role in the investigation. Ex.P18 is the observation mahazar and Ex.P19 is the rough sketch, both referable to the place where the offence of kidnapping was committed.

                     (18) PW18 is Muthu, IO, who would speak about the investigation in detail and the consequent final report. Ex.P20 is inquest report. Ex.P21 is section alteration report. Ex.P22 is the observation mahazar and Ex.P23 is the rough sketch, both referable to the coconut grove and the water tank. Ex.P24 is the seizure mahazar for sample water. Ex.P25 is the seizure mahazar for the bike. Ex.P26 is the copy of FIR in Cr No.66/2019 and Ex.P27 is its final report, both relating to the complaint given by Sahaya Sindhuja against Mary Ammachi and others.

10. While questioning under S.313 CrPC in respect of the incriminating materials appearing against him in the evidence of the prosecution, the accused answered before the trial court that all such evidence is false and that this is a false case.

11. On the other hand, there is no evidence, either oral or documentary, on the side of the accused.

12. Upon such a full fledged trial, the trial court has acquitted the accused of the charge under S.201 IPC but convicted him for the offences under S.364 and S.302 IPC and sentenced him as aforesaid.

13. Assailing such conviction and sentences of the trial court, the accused has preferred this criminal appeal before us.

14. We have heard the learned counsel for the appellant/accused and the learned counsel for the State (Criminal Side), and we have also perused the records carefully.

15. Learned counsel appearing for the appellant/accused would submit

                     (a) that since Ex.P26, the subsequent FIR relating to the complaint given by Sahaya Sindhuja against Mary Ammachi and others does not specifically speak of the balance of Rs.54,000/-, the strong enmity between the accused and Sahaya Sindhuja, giving rise to the motive for the offences, as portrayed by the prosecution, would fail,

                     (b) that since PW1, PW2 and PW5 are close relatives, their evidence being the evidence of interested witnesses cannot be relied on for any purpose,

                     (c) that when the offence of kidnapping is said to have taken place on 17.03.2019 at about 8.00 am, and when the complaint is said to have been lodged at about 4.00 pm, the delay of 8 hours in lodging the complaint is fatal to the case of the prosecution,

                     (d) that when the presence of PW4 near the water tank in the coconut grove during the relevant time has not been properly explained by the prosecution, PW4 is only a chance witness and his evidence would not assume any importance,

                     (e) that when PW10, the doctor who conducted the post mortem, says the dead body got decomposed, when he says the decomposition would start after 36 hours of death and when the dead body is said to have been kept in mortuary after the conclusion of inquest on 18.03.2019 at about 6.45 pm, the case of the prosecution that kidnapping has taken place on 17.03.2019 at about 8.00 am would fail,

                     (f) that the absence of probable injuries on a four years old boy in a case of forcible drowning in a small water tank would also create a reasonable suspicion on the case of the prosecution,

                     (g) that it is mysterious as to how the accused was taken from Railway Police Station, Palakkad, to Kanyakumari Police Station without following the legal formalities,

                     (h) that the non examination of Prathiba who is said to have written the complaint, Ex.P1, is also fatal to the case of prosecution, and

                     (i) that therefore, a judgment reversing the finding and sentences of the trial court, and acquitting the accused of all the charges leveled against him needs to be passed.

16. Per contra, the learned counsel for the State (Criminal Side) would submit that when there is ample evidence to prove the money dispute between the accused and PW1, the mother of the deceased, the quantum of the balance amount repayable by her is not material, that PW1, PW2 and PW5 are not interested witnesses but they are natural witnesses deposing the material particulars, that the delay in lodging the complaint has been plausibly explained by PW1, the de facto complainant, that PW4 is not a total stranger to the coconut grove but a nearby villager and as such, he cannot be said to be a chance witness, that the defence pertaining to the decomposition of the dead body of Raina would not assume much importance because it depends on other factors such as temperature and quality of water, that since the victim is four years old preschooler, the absence of injuries of drowning on his body would not be a criterion, that even though there are some procedural lapses on the part of the prosecution in the production of the accused from Railway Police Station, Palakkad to Kanyakumari Police Station, such lapses being procedural would not affect the case of the prosecution, that when PW1, the de facto complainant, has acknowledged the complaint, Ex.P1, Prathiba, the writer thereof, need not be examined, that the prosecution has proved its case to the hilt and that therefore, the criminal appeal filed by the accused deserves for dismissal.

17. Point for determination in this appeal is whether the trial court is right in finding the appellant/accused guilty and thereby convicting and sentencing him under S.364 IPC and S.302 IPC?

18. Two distinct offences, one, kidnapping of Raina in order to murder, punishable under S.364 IPC, and the other, murder of Raina, punishable under S.302 IPC, are alleged to have been committed by the accused. First occurrence is alleged to have taken place on 17.03.2019 at about 8.00 am in front of the house of PW2, Mary Sharmila, at Arokiapuram situate within walking distance from Leepuram where PW1, the mother of the deceased Raina, was residing, and the second occurrence is alleged to have taken place on 17.03.2019 at about 10.00 am in a water tank found in a coconut grove situate at Muhilan Kudiyerippu near Manakkudi, some 9 kms from Arokiapuram.

19. PW1, the mother of the deceased Raina, and PW2, the younger maternal aunt of PW1, have given evidence that the deceased Raina, during the relevant period, was staying at the house of PW2 at Arokiapuram and attending preschool. It is pertinent to note that such stay of the deceased Raina with PW2 at Arokiapuram has not been disputed by the accused.

20. It is an admitted fact that the accused is the brother of the mother in law of PW1 or in other words, the accused is the maternal uncle of her husband, Arokia Kevinraj. Technically speaking, the accused is a known person whose identity is not at all under challenge.

21. Before delving deep, we feel it appropriate to refer to the decision of the Hon’ble Apex Court in State of Madhya Pradesh V Balveer Singh (2025 INSC 261) where the principles and guidelines governing the appreciation of ocular/eye witness have been formulated and the relevant excerpts would read as under:

                     ‘56. The appreciation of testimony of a witness is a hard task. There is no fixed or straight jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: –

                     a. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

                     b. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

                     c. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

                     d. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

                     e. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

                     f. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

                     g. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

                     h. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another.

                     i. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

                     j. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

                     k. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

                     l. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

                     m. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

                     n. The evidence of an interested and/or related witnesses should not be examined with a coloured vision simply because of their relationship with the deceased. Though it is not a rule of law, it is a rule of prudence that their evidence ought to be examined with greater care and caution to ensure that it does not suffer from any infirmity. The court must satisfy itself that the evidence of the interested witness has a ring of truth. Only if there are no contradictions and the testimony of the related/interested witness is found to be credible, consistent and reasonable, can it be relied upon even without any corroboration. At the end of the day, each case must be examined on its own facts. There cannot be any sweeping generalisation. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported in AIR 1983 SC 753; Leela Ram v. State of Haryana reported in AIR 1999 SC 3717; Tahsildar Singh v. State of UP reported in AIR 1959 SC 1012]

                     57. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence…..’

22. Keeping in mind the above principles and guidelines, let us get into further discussions. PW2 and PW3 are said to be the eye witnesses for the first occurrence.

                     (a) PW2 would state in her evidence that on 17.03.2019 at about 8.00 am, while Raina was playing in front of her house, the accused came by a bike, Yamaha Ray, bearing registration number 5960, and kidnapped Raina, that on seeing the occurrence, she rushed to the very spot, that PW3 and Raj also witnessed the occurrence, that she informed the occurrence to PW1, that she along with PW1, PW3 and Raj went to the house of the accused and asked the wife of the accused about the accused and Raina, that the wife of the accused said she did not know, that they searched many places for Raina but they could not find him and that PW1 lodged a police complaint at about 4.00 pm.

                     (b) PW3 would state in her evidence that on 17.03.2019 at about 8.00 am, while she was collecting water in front of her house, the accused was carrying Raina on a bike, that PW2 was following the bike and shouting at the accused, that on understanding the situation, she was also following the accused, that the accused was carrying Raina on his bike through a narrow lane in between her house and the house of the accused, that they could not reach the accused, that the accused took a way leading to the outskirt of the village, that the registration number of the bike is TN74 AU 5960, that PW2 informed the occurrence to PW1, that she along with PW1, PW2 and Raj went to the house of the accused and asked the wife of the accused about the accused and Raina, that the wife of the accused said she did not know, that they searched many places for Raina but they could not find him and that PW1 lodged a police complaint at about 4.00 pm.

23. On such careful analysis, in the light of the above principles and guidelines, we find that the evidence of PW2 and the evidence of PW3, besides credible and reliable, corroborate each other in all material particulars. Even during the cross examination of PW2 or PW3, the accused was not able to show any contrary driving us to disbelieve their evidence. Therefore, we are of the firm view that the evidence of PW2 and the evidence of PW3 would prove the first occurrence.

24. In addition thereto, the bike, MO3, used by the accused in the first occurrence has been recovered in pursuance of the confession given by the accused, and PW9, VAO Francis Froshkan, would speak about the confession of the accused and the recovery of the bike, MO3, in pursuance thereof. That apart, PW2 and PW3, in their evidence, have specifically mentioned the registration number of the bike and identified the bike before the court. Therefore, the recovery of the bike in pursuance of the confession of the accused and the evidence of PW2 and PW3 identifying the bike before the court would also prove the first occurrence.

25. Taking hold of the relationship among PW1, PW2 and PW5, the learned counsel for the accused would contend that since PW1, PW2 and PW5 are close relatives, their evidence being the evidence of interested witnesses cannot be relied on either for proving the first occurrence or for proving the motive. Of course, it is true that PW1, PW2 and PW5 are relatives. What is the probative value of such related witnesses is the question before us.

26. In Ganapathi and another V State of Tamil Nadu ((2018) 5 SCC 549), the Hon’ble Apex Court has explained the probative value of such related witnesses as under:

                     ‘13. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'…

                     14. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made…

27. In State of Madhya Pradesh V Balveer Singh (supra), the Hon’ble Apex Court has again held as under:

                     ‘56. n. The evidence of an interested and/or related witnesses should not be examined with a coloured vision simply because of their relationship with the deceased. Though it is not a rule of law, it is a rule of prudence that their evidence ought to be examined with greater care and caution to ensure that it does not suffer from any infirmity. The court must satisfy itself that the evidence of the interested witness has a ring of truth. Only if there are no contradictions and the testimony of the related/interested witness is found to be credible, consistent and reasonable, can it be relied upon even without any corroboration. At the end of the day, each case must be examined on its own facts. There cannot be any sweeping generalisation…’

28. In this case on hand, PW2 and PW3 are the eye witnesses to the first occurrence, and PW2 alone is the relative of PW1 but PW3 is not, as admitted during her cross examination. As held earlier, the evidence of PW2, as corroborated by the evidence of PW3, is found credible, reliable, consistent and reasonable, and the accused was not able to show any contrary or inconsistency during the cross examination of PW2 driving us to disbelieve her evidence. Therefore, the defence of ‘related/interested witnesses’ as against PW2 would obviously fail.

29. Of course, PW1 is the relative of PW2 and PW5 who would speak of the money dispute between PW1 and the accused. It is true that such money dispute is projected to be the motive for the offences. But, it is trite that when an occurrence rests on direct evidence or in other words, eye witnesses, the motive behind the commission of the offence would be of little relevance and the prosecution need not prove such motive which would have much relevance only in cases resting on circumstantial evidence. Therefore, the defence of ‘related/interested witnesses’ as against PW1, PW2 and PW5 referable to motive would also fail inasmuch as the first occurrence rests on direct evidence of the eye witnesses.

30. Resultantly, we hold that the evidence of PW2 and PW3 being the eye/occurrence witnesses, coupled with the recovery of the bike in pursuance of the confession of the accused and the identification of the bike before the court by PW2 and PW3, would prove the first occurrence beyond all reasonable doubt.

31. Next comes the second occurrence which is alleged to have taken place on 17.03.2019 at about 10.00 am in a water tank found in a coconut grove situate at Muhilan Kudiyerippu near Manakkudi, some 9 kms from Arokiapuram. According to the prosecution, the second occurrence rests on the direct evidence of PW4, a resident of Keela Manakkudi. Unlike the first occurrence which rests on the direct evidence of two witnesses, PW2 and PW3, the second occurrence rests on the testimony of a single eye witness, PW4.

32. State of Uttar Pradesh V Survendra Kumar @ Sunil Kumar (Criminal Appeal No.386/2017 decided on 16.01.2025) is the case where the Hon’ble Apex Court has laid down the principles governing the appreciation of the testimony of single eye witness, as under:

                     ‘35. … If the evidence of a solitary eye-witness is found to be true, trustworthy and reliable, then it is open for the Court to rely upon the same for the purpose of holding the accused persons guilty of alleged offence. Ordinarily the evidence of a solitary witness can be classified into three categories, (i) wholly reliable (ii) wholly un-reliable and (iii) neither wholly reliable nor wholly unreliable.

                     36. If the evidence of a solitary eye-witness is found to be wholly reliable, there is no problem in accepting the same, if he is found to be wholly unreliable, the court should discard it in toto. If a situation arises wherein the court finds the evidence of a solitary eye-witness neither wholly reliable nor wholly un-reliable, in such circumstances, the court insists for corroboration in material particulars.’

33. Therefore, a duty is cast on us to find out whether the evidence of PW4 is ‘wholly reliable’ or ‘wholly un-reliable’ or ‘neither wholly reliable nor wholly unreliable’ requiring corroboration.

34. PW4 would state in his chief examination that he is the resident of Keela Manakkudi, that he is a fisherman, that he knows the accused, that on 17.03.2019 at about 10.00 am, while he along with Yudaadaasan was walking between a coconut grove and Duvaragapathy - Keela Manakkudi road, they heard a crying of a child within a distance of 25 feet, that as and when they reached the spot, he saw the accused immersing a child in a water tank, that as and when he asked the accused about such immersing, the accused replied he was giving his grandson a bath, that he could identify the dresses worn by the child, that the shirt and trouser worn by the child is MO1 and MO2, that as the accused claimed the child as his grandson, he left the spot, that on 18.03.2019 at about 6.00 pm, when he went to the spot, there were police and general public, that the accused was also present, that he saw the dead body of the child in the water tank, that the child found dead in the water tank was the child drowned by the accused on 17.03.2019 and that the police examined him.

35. During his cross examination, PW4 would state inter alia that he did not go to fish on 17.03.2019 being Sunday, that it is false to suggest the coconut grove would become dark even at 4.00 pm - 4.30 pm, that Yudaadaasan also came on 18.03.2019, that Yudaadaasan is residing abroad, that the height of the water tank is 2’9’’ feet - 3’6’’ feet, that it is false to suggest the water tank had no water, that the volume of water was between 1’6’’ feet - 2’ feet, that the water tank has an overflowing outlet, that the accused was drowning the child and pulling him out, that the way in which the accused was drowning the child did not create any doubt, that the coconut grove is very large, that the gates of the coconut grove would remain open, that the coconut grove has no fence or compound wall and that it is false to suggest he did not go to the coconut grove.

36. A careful scrutiny/analysis of the chief examination and cross examination of PW4 would drive us to come to a conclusion that PW4 has actually witnessed the second occurrence where the accused was immersing Raina in the water tank found in the coconut grove situate at Muhilan Kudiyerippu near Manakkudi, on 17.03.2019 at about 10.00 am, that the evidence of PW4 is found credible, reliable, consistent and cogent and that therefore, the evidence of PW4 is ‘wholly reliable’.

37. Learned counsel for the accused would, however, submit that the evidence of PW4 would come under the category of ‘neither wholly reliable nor wholly unreliable’ and that therefore, it would require further corroboration.

38. Assuming arguendo that the evidence of PW4 is ‘neither wholly reliable nor wholly unreliable’ as claimed by the accused, the circumstances corroborating the evidence of PW4, according to the prosecution, are (1) motive, (2) kidnapping of Raina, (3) confession and the recovery of the bike, MO3, (4) confession and the recovery of the dead body.

                     (1) Money dispute between PW1 and the accused is projected to be the motive for the offences. PW1, PW2. PW3 and PW5 would speak in unison that there existed a money dispute between PW1 and the accused. It is the case of PW1 that she borrowed a sum of Rs.2,00,000/- from the accused through Mary Ammachi, that a sum of Rs.54,000/- was the balance amount repayable by PW1, and that there was a strong enmity between her and the accused on account of such balance amount. Per contra, there is nothing on record to discard the money dispute which PW1 pleads, and no definite suggestion has been put forward to PW1 to the effect that there is no money dispute at all, either directly or indirectly, between PW1 and the accused. In a feeble attempt, the learned counsel for the accused would contend that since Ex.P26, the subsequent FIR relating to the complaint given by PW1 against Mary Ammachi and others does not specifically speak of the balance of Rs. 54,000/-, the strong enmity between the accused and PW1, giving rise to the motive for the offences, as portrayed by the prosecution, would fail. Firstly, Ex.P26 is the subsequent FIR dated 22.03.2019 whereas the occurrence took place on 17.03.2019. Secondly, what is relevant is, not the quantum of the balance amount but the enmity between the accused and PW1 arising out of the money dispute. Therefore, any contradiction, with reference to Ex.P26, as to the quantum of the balance amount repayable by PW1 to the accused through Mary Ammachi, would not assume any importance. In conclusion, the motive arising out of a strong enmity between PW1 and the accused on account of such balance amount stands proved.

                     (2) Kidnapping of Raina, as held earlier, has been proved by the cogent and consistent evidence of PW2 and PW3, both the eye/occurrence witnesses, whose evidence also stands corroborated by each other.

                     (3) PW9, VAO Francis Froshkan, would speak about the confession of the accused and the recovery of the bike, MO3, in pursuance thereof. Nothing contrary has been elicited to disbelieve the recovery of the bike in pursuance of the confession of the accused. Further, PW2 and PW3, in their evidence, have specifically mentioned the registration number of the bike and identified the bike before the court. Therefore, the recovery of the bike in pursuance of the confession of the accused also stands proved.

                     (4) PW9, VAO Francis Froshkan, would speak about the confession of the accused and the recovery of the dead body of Raina in pursuance such confession. In a question as to the distance between Arokiapuram and Manakkudi, PW5 would answer that it would be some 10 kms. From the evidence of PW9 and PW5, it is clear that Raina who was playing in front of the house of PW2 at Arokiapuram was found dead in a water tank found in a coconut grove situate at Muhilan Kudiyerippu near Manakkudi, some 9/10 kms away from Arokiapuram, that the place of occurrence, namely, the water tank in a large coconut grove was discovered by the police only in pursuance of the confession of the accused and the dead body of Raina was also discovered and recovered by the police only in pursuance of the confession of the accused.

39. Resultantly, we hold that the evidence of PW4 being the eye/ occurrence witness, coupled with such circumstances further corroborating the evidence of PW4 as discussed above, would prove the second occurrence beyond all reasonable doubt.

40. Learned counsel for the accused would yet contend that the delay of 8 hours in lodging the complaint is fatal to the case of the prosecution and that the non examination of Prathiba who is said to have written the complaint, Ex.P1, is also fatal to the case of prosecution. Of course, it is true that the offence of kidnapping has taken place on 17.03.2019 at about 8.00 am whereas the complaint has been lodged at about 4.00 pm. But, the delay has been plausibly explained by PW1, PW2 and PW3 in such a way that after the first occurrence, they were searching many places for Raina, including the house of the accused. Further, the accused is not a stranger but a known neighbour. Therefore, the delay of 8 hours in lodging the complaint is not fatal to the case of the prosecution. Furthermore, when the lodging of the complaint and the contents thereof have been acknowledged by PW1, the de facto complainant, the non examination of Prathiba who is said to have written the complaint is also not fatal to the case of prosecution.

41. Decomposition of the dead body, negative diatom test and absence of more probable injuries on the dead body are the next head placed before us by the learned counsel for the accused.

                     (1) It is true PW10, the doctor who conducted the post mortem, says that the dead body got decomposed and that the decomposition would start after 36 hours of death. It is also true that the dead body is said to have been kept in mortuary after the conclusion of inquest on 18.03.2019 at about 6.45 pm. If we take the dead body has been kept in mortuary on 18.03.2019 at about 8.00 pm at least, and if we take the second occurrence has taken place on 17.03.2019 at about 10.00 am, the interval would be around 34 hours, very close to 36 hours. Further, PW10, the doctor, would state that the decomposition of a dead body depends on other factors such as temperature and quality of water. Therefore, the matters revolving around the decomposition of the dead body would be of inconsequential.

                     (2) It is also true that the diatom test has become negative indicating the absence of diatom in the lungs and sternum of the deceased Raina and in the sample water taken from the water tank. PW11, the Scientific Officer, would answer that diatom would be present in stagnated waters but not in running waters. Therefore, the absence of diatom would also be of inconsequential.

                     (3) PW6 is Pauldurai, the watchman of the coconut grove, would state that the dimensions of the water tank is 6’ x 3’ x 2’ feet and the volume of water in the water tank, when he found the dead body, was about 1’6’’ feet. PW9, VAO Francis Froshkan, would state that the volume of water in the water tank, when he found the dead body, was about 2’ feet. When Raina, a four years old boy, who could not have struggled with the drowning, and who could not have retaliated against the accused, a 40 years old robust man, was drowned in such water in such water tank, Raina would not have sustained much physical injuries. It is pertinent to note that Raina has, however, sustained one injury, an abrasion measuring 5 x 2cm in front of lower half of left forearm, suggesting forcible drowning/submerging. Therefore, the absence of more probable injuries on the dead body of Raina would not affect the case of the prosecution in anyway.

42. Relying on the decision in Jabir V State of Uttarakhand (2023 SCC OnLine SC 32), the learned counsel for the accused would contend that since PW2 and PW3 would prove the circumstance of the accused having been seen last together with the deceased in front of the house of PW2 and since PW4 would also prove the circumstance of the accused having been seen last together with the deceased in the water tank at the coconut grove, conviction of the accused on the basis of ‘last seen together’ is not sustainable. It is evident from the materials that PW2 and PW3 would not prove the mere circumstance of the accused having been seen last together with the deceased in front of the house of PW2 and that PW4 would not prove the mere circumstance of the accused having been seen last together with the deceased in the water tank at the coconut grove. What has been proved by the evidence of PW2 and PW3 is the very offence of kidnapping of Raina by the accused using his bike, and what has been proved by the evidence of PW4 is the very offence committed by the accused of causing the death of Raina by drowning him in the water tank at the coconut grove. Therefore, the aforesaid decision would not come to rescue the accused.

43. Questioning the legality of taking the accused from Railway Police Station, Palakkad, to Kanyakumari Police Station, without any legal formalities, the learned counsel for the accused would contend that this is a serious legal infirmity going to the root of the case of prosecution.

                     (a) In this regard, the case of the prosecution is that pursuant to the information from the office of the Superintendent of Police, IO (in charge) deputed SI Subramanian and HC Jeyabalan to bring the accused from the Railway Police Station, Palakkad, where he had been kept as a suspicious stranger, that on 18.03.2019, IO (regular) took the case for investigation and waited for the production of the accused from Palakkad, that on production of the accused and after due identification by PW1, IO arrested the accused on 18.03.2019 at about 4.00 pm and recorded his confession in the presence of VAO Francis Froshkan and his assistant, Rajasekar.

                     (b) What is notable is that a question has been put forward to PW18, IO, to the effect that the police should have arrested the accused at Palakkad Railway Police Station itself on the basis of the complaint, Ex.P1. But, the accused has been arrested on 18.03.2019 at about 4.00 pm at Kanyakumari Police Station only after due identification by PW1 and accordingly, he has been duly remanded after complying with all legal formalities. Therefore, the arrest of the accused, after his identity having been ascertained by the de facto complainant, PW1, cannot be found fault with.

                     (c) Of course, there is nothing on record to authenticate the taking of the accused from Railway Police Station, Palakkad, to Kanyakumari Police Station. PW17, IO (in charge) would state that she, under an order, deputed SI Subramanian and HC Jeyabalan to bring the accused from the Railway Police Station, Palakkad. But, no such order has been produced before the trial court. Nevertheless, the accused, as stated earlier, had been kept at Railway Police Station, Palakkad, only as a suspicious stranger but not an accused in any case. In such circumstances, taking the accused from Railway Police Station, Palakkad, to Kanyakumari Police Station can be construed only as a part of the investigation. Even otherwise, taking the accused from Railway Police Station, Palakkad, to Kanyakumari Police Station, without due authorization, is nothing but a procedural lapse amounting to defective investigation.

                     (d) C.Muniappan and others V State of Tamil Nadu ((2010) 9 SCC 567) is a case where the Hon’ble Apex Court has discussed the effect of defective investigation, as under:

                     ‘55…..The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.’

                     (e) Therefore, the defective investigation referable to taking the accused from Railway Police Station, Palakkad, to Kanyakumari Police Station, without due authorization, being a procedural lapse, in our considered view, would not cause any prejudice to the accused, vitiating his trial or conviction.

44. In the light of the foregoing discussions and reasons, we hold that the trial court is right in finding the appellant/ accused guilty and thereby convicting and sentencing him under S.364 IPC and S.302 IPC.

45. In fine, this criminal appeal is dismissed, maintaining the finding and sentences of the trial court.

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