IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.699 of 2009 Velayutham ..Appellant Vs. State by Inspector of Police, Thiruverkadu Police Station, Chennai. (Crime No.1391/2007) ..Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, (Fast Track Court No.2), Poonamalle, Chennai made in S.C.No.80 of 2008 dated 17.12.2008. For Appellant : Mr.S.Pannerselvam For Respondent : Mr.Babu Muthu Meeran, Addl.P.P J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-II, Poonamallee in S.C.No.80 of 2008 whereby the accused stood charged under sections 302 and 201 I.P.C., tried and on trial, he was found guilty as per the charges and awarded life imprisonment for offence under section 302 IPC and seven years rigorous imprisonment for the offence under section 201 IPC along with fine and default sentences. The sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of this Appeal can be stated as follows: (a) P.W.1 is the wife of the appellant. They had three children. The third child was a boy aged 5 years. From the time of birth of the third child, the accused suspected that the child was not born to him and he often quarrelled with his wife. On the date of occurrence, that was on 2.11.2007 at about 11.00 p.m., when P.W.1 woke up, she found her husband and her third child missing. She made https://hcservices.ecourts.gov.in/hcservices/ search of her child but could not trace him. On 4.11.2007, at about 11.00 p.m. the accused returned alone and when she questioned him about the child, he replied that he murdered the child. (b) Immediately, P.W.1 went to the respondent Police Station and gave a complaint,Ex.P1 to P.W.15, Sub Inspector o Police. On the strength of the complaint Ex.P1, a case came to be registered in Crime No.1391/2007 under section 302 IPC. The express F.I.R., Ex.P.16 was despatched to Court. (c) P.W.16, Inspector of Police of that circle took up investigation. He proceeded to the spot, made an observation and prepared the observation mahazar, Ex.P.13. He recorded the statement of the witnesses and produced the same before the Judicial Magistrate. Thereafter, the statement under section 164 Cr.P.C. was recorded by the Judicial Magistrate concerned pursuant to the orders of the Chief Judicial Magistrate. (d) Pending investigation, on 4.11.2007, at about 5.00 p.m., when P.W.6, Village Administrative Officer was in his office, the accused appeared before him and narrated the entire incident that he murdered the child and buried the body. P.W.6 recorded the extra judicial confession given by the accused and the same was marked as Ex.P.10. P.W.6, Village Administrative Officer took the accused to the respondent Police station and produced before the investigator, P.W.16 and also Ex.P10, confessional statement. When the accused was interrogated by the investigating officer, he came forward to give confessional statement voluntarily and the same was recorded in the presence of P.W.6 and other witnesses. The admissible part of the confessional statement was marked as Ex.P9 and thereafter, he took the investigator and also P.W.6 to the place where the dead body was buried. (e) An intimation was given to P.W.14, Tahsildar of the said place. He came there and caused exhumation of the body of the child. Thereafter, he conducted inquest on the dead body of the deceased and prepared Ex.P8, inquest report in the presence of witnesses and the dead body was subjected to post mortem. (f) On requisition made, P.W.14 doctor attached to the Government Hospital, conducted autopsy on the dead body of the child Ganesh and gave his opinion through the contents of the post mortem certificate, Ex.P14 that the child died out of asphyxia due to strangulation. The accused also produced M.O.1, waist cord with which he strangulated the child and caused his death. All the documents were sent to Court. The accused was sent to judicial remand. On completion of the investigation, the investigating officer filed a final report. https://hcservices.ecourts.gov.in/hcservices/ (g) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused/appellant, the prosecution examined 16 witnesses and relied on 23 exhibits and 5 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial Court took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty of the charges and rendered the judgment of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, the learned counsel, Mr.S.Panneerselvam, would submit that the prosecution has not proved the case or brought home the guilty of the accused beyond reasonable doubt. According to the prosecution, the occurrence has taken place on 2.11.2007 prior to 11.00 p.m. Though P.W.1, mother of the child would claim that she knew that the child was missing on 2.11.2007, she did not chose to give complaint to the police or to the Village Administrative Officer about the same. This would cast doubt in the conduct of P.W.1. P.W.1 would also claim that after few days, her husband came back and informed her about the incident and thereafter, she went to the police station and gave Ex.P1, complaint which is highly doubtful. 4. Added further learned counsel, the prosecution placed much reliance on Ex.P10, the extra judicial confession alleged to have been given by the accused/appellant to P.W.6, V.A.O. A reading of Ex.P10, the alleged extra judicial confession would clearly indicate that it is thoroughly unnatural and should have been brought about in order to strength the prosecution case since P.W.1 has categorically deposed that her husband came back on 4.11.2007 and informed her that he murdered the child. Therefore, the service of P.W.6, V.A.O. should have been taken in order to create those documents. 5. Learned counsel would further submit that the recovery of M.O.1, waist cord was made as if it has been used for the purpose of strangulation but it was only subsequent introduction made to suit the prosecution story. Apart from that, the place of burial was also nearby the house of the accused and it was also a public place. Hence, the identification of the place of burial by the accused, cannot but be false. All put together would clearly indicate that the prosecution has not proved the case either by direct or indirect evidence. Under such circumstances, the trial Court should have acquitted the accused but has taken an erroneous view and found the accused/appellant guilty. Hence, it is a fit case where the accused is entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the dead body of the child, aged 5 years, the third child of the appellant and P.W.1 was exhumed by P.W.4 Tahsildar in the presence of witnesses and conducted inquest on the dead body and thereafter, the dead body was subjected to post mortem. P.W.14, doctor who conducted autopsy on the deceased child has categorically given opinion that the deceased child died out of asphyxia due to strangulation and it could have been caused by M.O.1, waist cord. The time and cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence, no impediment is felt by this Court in recording so. 8. True it is, the prosecution had no direct evidence to offer in order to substantiate the charges levelled against the appellant/accused. On scrutiny of the materials available, the Court is of the considered opinion that the prosecution has placed and proved all necessary circumstances indicative of the culpability of the accused. According to the prosecution, the occurrence has taken place before 11.00 p.m. on 2.11.2007. It is not in controversy that the deceased boy, aged 5 years was the third son of the accused/appellant and P.W.1. From the time of birth of the third child, there was often quarrel between the accused and his wife. The accused was under suspicion that the third son was not born to him. On 2.11.2007, after taking dinner, the accused, his wife and children, all went to bed. At about 11.00 p.m., when P.W.1 woke up, she found her husband and the third son missing. At this juncture, it remains to be stated that it was the accused who took the child from the house. A comment was made by the learned counsel for the appellant that if P.W.1 has found the child missing, immediately, she would have given a report either to the police or to the Village Administrative Officer of that place. It is pertinent to point out that it was her husband who has taken the child. Under such circumstances, she did not report the same to the police or to the V.A.O., but at the same time, she has made a search but could not trace her child. According to her, on 4.11.2007, when she was in the house, the accused came there and when she asked about the child, he replied that he had killed the child. Only thereafter, she came to know about the death of the child. Immediately, she rushed to the police station and gave Ex.P1 complaint to P.W.14, Sub-Inspector of Police, on the strength of which, a case came to be registered under section 302 IPC. A reading of Ex.P1 would clearly indicate that she has narrated the entire incident that had taken place even prior to 11.00 p.m. on 2.11.2007 and also the information passed on to her by the accused on 4.11.2007. Her evidence is natural, cogent and convincing. https://hcservices.ecourts.gov.in/hcservices/ 9. Apart from that, the accused/appellant has appeared before P.W.6, V.A.O., to whom he has given confessional statement and the same was recorded by him and it was P.W.6 who took the accused along with Ex.P10, confessional statement and produced him before the investigator. The Court is thoroughly satisfied with the evidence of P.W.6, Village Administrative Officer which was genuine and acceptable one. Despite cross examination in full, no circumstance was brought about by the accused side to doubt that piece of evidence. So long as the evidence of the person to whom the extra judicial confession was made, inspires the confidence of the Court, even on the sole piece of evidence of extra judicial confession, conviction can be sustained. In the instant case, the evidence of P.W.6 inspires the confidence of the Court. 10. Added circumstance was that it was the accused who took the investigator and identified the place where the dead body was buried pursuant to the confessional statement given by him. The Tahsildar, P.W.4 has caused exhumation of the dead body. Had the accused not passed on the information as to the place where the dead body was buried, the investigator could not have fixed the place of burial. This, in the considered opinion of the Court, is the strong circumstance pointing to the nexus of the crime with the accused. Apart from that, the accused has also produced M.O.1, waist cord, pursuant to the confessional statement. The post mortem doctor,P.W.14 has also categorically given opinion that strangulation could have been effected with M.O.1, waist cord. All put together would clearly indicate that it was the accused and none else had committed the heinous crime of murdering his own son, aged 5 years. 11. The learned counsel for the appellant brought to the notice of the Court that the accused was entertaining suspicion over the birth of the child and often the accused quarrelled with his wife all along the period and hence, there was no intention to cause death of the child and the act of the accused would not amount to penal provision of murder but culpable homicide not amounting to murder and the same has got to be considered by this Court. 12. There is no material available to prove that the accused doubted the character of his wife and it was not spoken to anywhere before the trial Court. Thus, it is clear, the child was not born to him is only a suspicion entertained by him in his mind. Mere suspicion in the mind of the accused, cannot be a reason for provocation. Thus, the provocation was self made. To bring down from the provision of murder, the law would require, that the provocation should be caused by the victim and not self made as the one done in the instant case. Under such circumstance, the act of the accused would attract the penal provision of murder only. The trial Court is perfectly correct in finding the accused guilty under section 302 IPC for causing the death of his child and under section 201 IPC for screening the offence by burrying the child and kept silent for few https://hcservices.ecourts.gov.in/hcservices/ days. This Court finds no reason to interfere with the judgment passed by the trial Court either factually or legally. Hence, the judgment of the trial Court has got to be sustained. 13. In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.2 POONAMALLEE,CHENNAI 2. -DO THRO THE PRINCIPAL SESSIONS JUDGE CHENGALPATTU 3. THE DISTRICT COLLECTOR, CHENGALPATTU 4. THE DIRECTOR GENERAL OF POLICE MYLAPORE,CHENNAI 5. THE SUPERINTENDENT CENTRAL PRISON, PUZHAL,CHENNAI 6. THE INSPECTOR OF POLCIE THIRUVERKADU POLICE STATION CHENNAI 7.THE PUBLIC PROSECUTOR,HIGH COURT, MADRAS. 8.THE JUDICIAL MAGISTRATE NO.2,POONAMALLEE 8.-DO THRO THE CHIEF JUDICIAL MAGISTRATE, CHENNAI 10. THE SECTION OFFICER CRIMINAL SECTION,HIGH COURT, MADRAS 1 cc To Mr.S.Paneerselvam, Advocate, SR.67673 CRL. APPEAL No.699 of 2009 JRG(CO) sra 22.12.2009 https://hcservices.ecourts.gov.in/hcservices/