Madras High Court
Muthu Alias Muthupandi vs The State on 30 June, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 30/06/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.362 of 2009 Muthu alias Muthupandi, ...Appellant/ S/o.Ramasamy Thevar. Sole Accused vs The State, rep.by The Inspector of Police, Kadayanallur Police Station, (Crime No.480/2007) Tirunelveli District. ...Respondent/ Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction and sentence passed in S.C.No.206/2008 on the file of the learned I-Additional Sessions Judge, Tirunelveli District, dated 21.10.2009. !For Appellant ... Mr.V.Kathirvelu ^For Respondent ... Mr.M.Daniel Manoharan, Addl.Public Prosecutor. :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM,J) Challenge is made to the judgment of the I-Additional Sessions Division, Tiurnelveli District, dated 21.10.2009, made in S.C.No.206/2008, whereby the appellant/sole accused stood charged under Section 302 IPC, tried and found guilty thereunder and sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one year.
2.The short facts necessary for the disposal of the appeal can be stated as follows:
(a)P.W.1 Maheswari is the mother of the deceased infant, aged 4-1/2 months and the accused/appellant is the father of the infant. P.W.2 Sankara Pandian is the own brother of P.W.1. P.W.1 was given in marriage to the appellant/accused 1-1/2 years prior to the occurrence i.e. on 16.10.2007.
(b)After the marriage, P.W.1 was living in her husband's house which is also situated in the same street. P.W.1 came to her parental house for 1st delivery and the said child was born. Thereafter, the appellant/accused never cared to see either the child or his wife. On his being scolded by his father, the accused visited P.W.1 and also the child and informed to P.W.1 that the time of the birth of the child was not alright rather not favourable to him and because of that he could not go to foreign country.
(c)On 16.10.2007, the accused came to the house of his father-
in-law, met P.W.1, took the baby on his hand and was playing with the baby nicely and P.W.1 was very happy on seeing the same. After some time, the accused took the baby to his house. Since the accused did not bring back the child to P.W.1, P.W.1, accompanied by her brother P.w.2, went to the house of the accused and at that time they saw the accused actually pressing the nose and mouth of the child with his hand and on seeing P.W.1 and P.W.2, the accused abandoned the child there and ran away. P.W.1 found the child unconscious and took the child to hospital where they reported that the child was brought dead. Thereafter, P.W.1 rushed to the respondent Police Station and gave a complaint, marked as Ex.P-1, to P.W.6, the Sub-Inspector of Police. P.W.6, based on Ex.P-1 complaint, registered a case in Crime No.480/2007 under Section 302 IPC and prepared Ex.P-4, the First Information Report, despatched the same to the Court P.W.7, the Head Constable, and also the copies to the higher police officials for further action.
(d)On receipt of a copy of Ex.P-4 FIR, P.W.12, the Inspector of Police, took up the investigation and rushed to the residence of P.W.1 where the body of the child was kept. He made an observation of the scene place, in the presence of witnesses and prepared Ex.P-10, the observation mahazar and also drew Ex.P-11, the rough sketch. He conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses and prepared Ex.P-12, the Inquest Report and sent the same to the Court through P.W.8, the Head Constable. P.W.12 also made an observation of the surrounding areas of the scene place and prepared Ex.P-13, the observation mahazar and Ex.P-14, the rough sketch. He enquired the witnesses and recorded their statements. Thereafter, he sent the body of the deceased for postmortem through P.W.9, the Head Constable, with Ex.P-7, the requisition.
(e)P.W.10, the Doctor attached to Government Hospital at Kadayanallur, conducted autopsy on the body of the deceased at 03.00 p.m. on 16.10.2007. On completion of postmortem, P.W.10 issued Ex.P-8, the postmortem certificate, reserving her opinion as to the cause of death pending chemical analysis report. On receipt of Ex.P-9, the Chemical Examiner's Report, P.W.10, the Doctor, gave her final opinion that "death due to external forceful compression (may be by hand) of larynx." After postmortem, P.W.9, the Head Constable, recovered M.Os.4 and 5 from the body of the deceased and handed over the same to P.W.12, the Investigation Officer.
(f)Pending investigation, P.W.12, the Inspector of Police, arrested the accused on 36.10.2007 at 06.30 p.m. in the presence witnesses and recorded the voluntary confessional statement given by him, pursuant to which the accused took and produced M.O.3, the Dollar, and the same was recovered by P.W.12 under Ex.P-2 mahazar attested by witnesses. Thereafter, the accused was sent to judicial custody. P.W.12 completed the investigation and filed the final report against the accused under Section 302 IPC on 20.02.2008.
3.After committal proceedings, the case was taken on file by the Sessions Court in S.C.No.206/2008 and necessary charge was framed. To prove the charge against the accused, the prosecution examined 12 witnesses as P.Ws.1 to 12 and marked 17 documents as Exs.P-1 to P-17 and produced M.Os.1 to 5. On completion of the evidence on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, he denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let it. The trial court, after hearing the parties, took the view that the prosecution has proved the charge against accused beyond reasonable doubt, found him guilty on the charge of murder, convicted him thereunder and awarded life imprisonment and hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant/accused, the learned counsel Mr.V.Kathirvelu would submit that in the instant case the evidence of P.Ws.1 and 2 should not be believed, since both of them are closely related, not only inter se but also to the deceased child. He would contend that according to the evidence of P.W.1, the accused did not visit her or the child in the past and therefore it is highly improbable to say that the appellant/accused, on the date of occurrence, took the child to his house and further, according to P.W.1 and P.W.2, when they went to the house of accused they found the accused pressing the nose and mouth of the child but, the injuries noticed by P.W.10, the postmortem doctor and found mentioned in the postmortem certificate would not have been caused by doing so and even the expert opinion canvassed by the prosecution through P.W.5, the District Police Surgeon & Professor of Forensic Medicine, through Ex.P-3, was not in favour of the prosecution.
5.Added further the learned counsel, Ex.P-4 FIR was registered at 10.00 a.m. and it has reached the court only at about 10.00 p.m. and even the P.W.7, the constable, who took the same to the Court, has stated before the Court that he handed over the FIR at Judicial Magistrate Court, Tenkasi, at 01.30 p.m. and thus there was huge delay in the FIR reaching the Court which remain unexplained and this inordinate delay clearly indicates that the case was actually foisted against the appellant/accused.
6.Added further the learned counsel, though the prosecution claims that the statement of eye-witnesses, namely P.Ws.1 and 2, were recorded on the very day of occurrence, i.e. 16.10.2007, those statements of witnesses were actually sent to the Court only on 20.02.2010, along with final report, which would be clearly indicative of the fact that those statements said to have been recorded by the prosecution on the very day of occurrence are nothing but false and all would go to show that the prosecution has miserably failed to prove its case but, the trial court, since it was a case of infanticide, was carried away by the said fact and found the appellant/accused guilty of murder and in view of the same it is a fit case where the judgment of the trial court has got to be set aside in the hands of this Court and the appellant/accuse has got to be acquitted.
7.The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellant and paid its anxious consideration to the submissions made on either side and perused the materials on record.
8.It is not in controversy that the child of P.W.1 and the accused, aged about 4-1/2 months, was taken to hospital on 16.10.2007 and the doctor who examined the child declared her brought dead and pursuant to the registration of a case in Crime No.480/2007 by P.W.6, the Sub-Inspector of Police, attached to the respondent police, the case was taken up for investigation by the Inspector of Police P.w.12 and following the inquest report prepared pursuant to the inquest made, the dead body was subjected to postmortem by P.W.10, who has given her final opinion after receipt of chemical analysis report that "death due to external forceful compression (may be by hand) of larynx." Thus, it is clear that the child of P.W.1 died out of homicidal violence and therefore the trial court was perfectly correct in recording so.
9.In order to prove the charge of murder against the accused, the prosecution to its benefit had the evidence of P.Ws.1 and 2. P.W.1 is the wife of the appellant. It is true that she is the mother of the deceased child and P.W.2 is the brother of P.W.1. It is settled proposition of law that mere relationship of the witnesses with the deceased cannot be a reason to brush aside their evidence but, their evidence should be subjected to careful scrutiny and at the same time, the court must look into the attending circumstances.
10.In the instant case, P.W.1 is the wife the appellant/accused and their marriage has taken place just 1-1/2 years prior to the occurrence. The child was born 4-1/2 months prior to the date of occurrence. It is not the case of the appellant/accused that P.W.1, his wife, has got any grudge or complaint against him and no circumstance or reason was brought to the notice of the court to cast any doubt on her evidence. In the absence of any such circumstance or reason, the court is unable to agree with the contention put-forward by the learned counsel for the appellant/accused. There is no reason why P.W.1 should come before a court of law to give evidence against her husband himself. Apart from that, P.W.2 is the brother P.W.1 whose evidence stood in full corroboration of the evidence of P.W.1. Thus, P.Ws.1 and 2 in the same and one voice would state that it was the accused who actually pressed the mouth and nose of the child. It is pertinent to point out that the child was only 4-1/2 months old and not even a hard pressure or force was necessary to bring an end to the life of the child.
11.The injuries noticed by P.W.10, the postmortem doctor and found mentioned in Ex.P-8 postmortem certificate are as follows.
"1.Abrasion on the external nose - right side.
2.Nail marking present above the right eyebrow."
Apart from the above external injuries, 10 ml. of blood was actually found frozen on the backside of the neck. The contention put-forth by the learned counsel that the child would have fallen down from the hands of the accused/appellant and because of that fall those injuries would have been caused cannot be countenanced, since no other abrasion or any other injury was found noticed on the face or the skull of the child. The ocular testimony projected by the prosecution, through P.W.1 and P.W.2, stood fully corroborated with the medical evidence, as could be looked into from the injuries noticed in the postmortem certificate. Thus, the Court is satisfied that the evidence let in by the prosecution was true, genuine and also convincing and acceptable.
12.It is true, as pointed out by the learned counsel for the appellant, that there is delay in the FIR reaching the Court. It is well settled law that mere delay either in registering the case or in despatching the FIR or the FIR reaching the court by itself cannot be a reason to reject the case of the prosecution but, it must be looked from all aspects put-forth in a particular case.
13.Apart from the above, it was brought to the notice of the Court that the statements of eye-witnesses, namely P.Ws.1 and 2, though claimed by the investigator that they have been recorded on the very day of occurrence, i.e. 16.10.2007, they have reached the court only on 20th February, 2008, along with the final report. On a perusal of the records, though it is found that the statements of P.Ws.1 and 2 have reached the Court only along with the final report, this is actually an irregularity committed by the investigator. In the opinion of the court, when the evidence of eye-witnesses placed before the trial court was convincing and acceptable and also stood fully corroborated by the medical evidence, the mere delay caused by the investigator in sending the statements of witnesses to the Court cannot be a reason to reject the prosecution case. In the instant case, sufficient evidence is available for the prosecution to bring home the guilt of the appellant/accused and the trial court has marshalled the evidence in proper perspective and found the appellant/accused guilty under the charge murder and rendered the judgment of conviction and the same has got to be affirmed.
14.This is a case of heinous crime where infanticide has been committed by the appellant/accused, causing the death of his own daughter, aged four months and in such circumstances, the trial court was perfectly right in finding the appellant/accused guilty under Section 302 IPC and sentencing him to undergo life imprisonment and there is nothing to disturb the same either factually or legally and accordingly the appeal is liable to be dismissed.
15.In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence rendered by the trial court n S.C.No.206/2008, dated 21.10.2009.
gb To
1.The Principal Sessions Judge, Tirunelveli District, Tirunelveli.
2.I-Additional Sessions Judge, Tirunelveli District, Tirunelveli.
3.The Inspector of Police, Kadayanallur Police Station, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.