IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.09.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.1021 OF 2007 Rajendran .. Appellant/Accused Vs. State by Inspector of Police, Panamarathupatti Police Station, Salem District Crime No.157/2003 .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the order passed in S.C.No.268 of 2004, dated 22.10.2007 on the file of the I Additional Sessions Judge, Salem. For Appellant : Mr.I.C.Vasudevan For Respondent : Mr.V.R.Balasubramanian, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) A challenge is made to the judgment of the I Additional Sessions Division, Salem made in S.C.No.268 of 2004, whereby the appellant/accused stood charged under Section 302 IPC, tried and found guilty as per the charge of murder of 20 days old female born, and awarded life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo one year R.I. 2.The necessary facts for the disposal of this appeal can be stated thus: a)P.W.1 is the wife and D.W.1 is the mother of the accused, who is a deaf and dumb person. 4 years prior to the occurrence, the marriage between the accused and P.W.1 took place and they were residing at a place within the jurisdiction of Panamarathupatti https://hcservices.ecourts.gov.in/hcservices/ Police station, the respondent herein. P.W.1 was pregnant. At that time, the accused was telling that the child should be one male born and he did not like female born. The same was informed by P.W.1 to P.W.2, the father of P.W.1. b)20 days prior to the occurrence, a female child was born. After the birth of the child, they were living in their residential house. On one day, the accused was telling by showing hand and by other way of expression that the child was to be cut into 2 pieces and each of them could take half. On the date of occurrence, namely on 17.10.2003 at about 10.00 a.m., P.W.1, the accused and the child were in the house. The accused informed her by showing signs that the goat is crying and therefore, she must go outside, tie the same and come back. For a moment, she hesitated, but since the accused compelled her to go out, she went outside. After leaving the goat with her mother, she came inside the house and found the child with blood injuries on the face and on different parts of the body and by the side, the grinder stone was also found. The accused was also standing nearby. Immediately, she raised alarm and the neighbours came over there. The accused fled away from the place of occurrence. c)Immediately, P.W.1 proceeded to the respondent police station, where P.W.11, the Sub Inspector of Police was present. She gave a complaint, which was marked under Ex.P.1, on the strength of which, a case came to be registered in Crime No.157 of 2003 under Section 302 IPC. Ex.P.18, the express F.I.R. was despatched to the Court. d)P.W.13, the Inspector of Police, on receipt of the copy of the F.I.R. took up the investigation, proceeded to the spot, made an inspection in the presence of the witnesses and prepared Ex.P.5, the observation mahazar and Ex.P.21, the rough sketch. The scene of occurrence was photographed through P.W.6, the photographer and Ex.P.10 (series), photos and Ex.P.11 (series), negatives were marked. He recovered M.O.1, the Grinder stone weighing about 10 Kgs. in the presence of the witnesses under a cover of mahazar and M.O.2, a plastic mat was also recovered under a cover of mahazar. P.W.13 conducted inquest on the dead body of the child in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Following the same, the dead body of the child was sent to Salem Government Mohan Kumaramangalam Medical College Hospital. e)P.W.12, the Doctor attached to the said Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the child and has issued Ex.P.20, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to cranio facial injuries and the death would have occurred 6 to 12 hours prior to autopsy. f)Following the same, the investigation was on. The accused was arrested and he was produced before the court. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in three reports, namely Ex.P.14, the Chemical Report, Ex.P.15, the Serologist's report and Ex.P.16, the blood group report. On completion of the investigation, the https://hcservices.ecourts.gov.in/hcservices/ Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and relied on 23 exhibits and 4 M.Os. 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 prosecution witnesses, which he flatly denied as false. The mother of the accused was examined as D.W.1, but no document was marked. On completion of the evidence of both sides, the trial court heard the arguments advanced, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and made a judgment of conviction and sentence as referred to above, which is the subject matter of challenge in this appeal. 4.Advancing arguments on behalf of the appellant, the learned counsel made the following submissions: a)Admittedly, the accused/appellant was a deaf and dumb person. The evidence of P.W.1, though happened to be the wife of the accused, was thoroughly unreliable and no credence could be attached to her evidence. According to P.W.1, on the date of occurrence, she was with her husband and it was he, who informed her that the goat was crying outside and hence she must go outside and tie the same. At this juncture, it is pertinent to point out that he is deaf and dumb and he could not speak and hence there is no question of hearing the sound of goat and asking her to go outside. The fact that he is deaf and dumb was fully known to P.W.1. Under these circumstances, P.W.1 clearly knew that he could not hear the sound even if it is raised by the goat and therefore, she could not have gone outside at all and this would falsify her evidence. b)D.W.1 is the mother of the accused. From her evidence, it would be quite clear that at the time of occurrence, he was very well staying with her in her house and only on receipt of the telephonic communication, he went to the scene of occurrence and thus, he has no involvement in the crime. Added further the learned counsel that the evidence of D.W.1 could not be rejected, since there is no reason brought forth for rejecting the same. c)In the instant case, according to the Investigating Officer, he went to the place of occurrence at about 1.00 p.m. for the purpose of investigation, but till that time, he could not fix the accused. Even according to the Investigating Officer, one Ramasamy and the other person came to the police station at about 10.45 a.m. and gave an information to the Sub Inspector of Police and this would indicate that the information, which was originally received by the police station, was suppressed and the information given by P.W.1 was not the first information and hence it is a case where the first information has been suppressed and that all would go to the benefit of the accused/appellant. Under these circumstances, the prosecution has not proved the case beyond reasonable doubt. All the factual positions have not been considered by the court below and hence the https://hcservices.ecourts.gov.in/hcservices/ appellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that 20 days old female child of the appellant and P.W.1 was done to death in an incident that took place inside the house of the accused/appellant and P.W.1 on 17.10.2003 at 10.00 a.m. Following the inquest made by the Investigating Officer, P.W.13 and preparation of Ex.P.22, the inquest report, the dead body of the child was sent for the purpose of autopsy to the Government Hospital. P.W.12, the Doctor has conducted autopsy on the dead body of the child and has issued the post-mortem certificate, opining that the deceased would appear to have died of shock and haemorrhage due to cranio facial injuries. The Doctor has also been examined as a witness and his post-mortem certificate has also been marked to that effect. Hence the fact that the child died out of homicidal violence was thoroughly proved by the prosecution, leaving no doubt. 7.In order to substantiate the fact that it was the accused/appellant, who committed the murder of a female child at the time and place of occurrence, the prosecution rested its case on the evidence of P.W.1. P.W.1 is the wife of the appellant/accused. She has categorically deposed that at the time when she was pregnant, the accused informed her by signing that he did not like the female child and the child must be one male. Further, after the child was born, he was telling that the child was to be cut into two pieces and each can take half. Therefore, previous to the occurrence, he expressed his displeasure over the birth of female child and hence he made-up his mind and thoroughly disliked the child. On the date of occurrence, namely on 17.10.2003, according to P.W.1, herself, the accused and the child were alone in the house at about 10.00 a.m. and the accused asked her, by signing, to go outside to tie the goat, since it was raising sound. With hesitation, she went outside and immediately, she handed over the goat to her mother and came back to see the dead body of the child. When she came inside, she found her child with injuries and by her side, the grinder stone was found. The accused was also standing inside the house. 8.At this juncture, the learned counsel for the appellant would submit that the evidence of P.W.1 should not be relied for the simple reason that the accused could not hear the sound raised by the goat, which fact was clearly known to P.W.1 and hence the evidence of P.W.1 that it was the accused who asked her to go out is false and that her evidence cannot be believed. The Court is of the considered opinion that the evidence of P.W.1 has got to be relied and it is trustworthy and inspired the confidence of the court for more reasons than one. P.W.1 is none else than the wife of the accused/appellant. It is a case of prosecution that they were living together during the relevant time. It is not the case of the accused that during the relevant time, he was away. It is admitted that he is a deaf and dumb person. It is a clear evidence that he was showing his signs, with which the things could be understood. It is true, on the date of https://hcservices.ecourts.gov.in/hcservices/ occurrence, according to P.W.1, the accused informed her that the sound of goat was heard outside and therefore, she must go out and tie the same. According to her, first she hesitated to go outside, but since it was her husband who asked her to go outside, she went outside and immediately, she handed over the goat to her mother and came back inside the house within a short span of time, within which time, the occurrence has taken place. Apart from that, they were living their matrimonial life without any disturbance whatsoever and the female child was born just 20 days prior to the occurrence. Hence there is no reason for the wife to go to the police station to give complaint against her husband that he has murdered the child. Further, she has come before the court to give evidence, which was recorded by the Sessions Court. In the instant case, in the absence of any circumstances or reasons, the evidence of P.W.1, which was clear, has got to be accepted and it was rightly done. 9.Further, immediately after the occurrence, she went to Panamarathupatti Police Station, where P.W.11, the Sub Inspector of Police was present, to whom she gave the complaint, on the strength of which a case came to be registered within a short span of two hours. Immediately, investigation was taken up by P.W.13 at about 1.00 p.m. and he conducted investigation, which was over in the evening hours and all the witnesses were examined. All would go to show that not only registration of the case, but also investigation was properly done. 10.The contention of the learned counsel for the appellant that the accused was fixed only at the time of investigation at 1.00 p.m. has got to be rejected for the simple reason that the case was registered at 11.30 a.m. by P.W.11, the Sub Inspector of Police on the information given by P.W.1 and on the strength of the same, the investigation machineries have also commenced the process, made an investigation and fixed the accused. 11. The learned counsel for the appellant would further submit that the information that was placed before the court was not the first information and P.W.1 has not gone to police station earlier and according to P.W.13, one Ramasamy and the other person gave information at about 10.45 a.m. At this juncture, it is pertinent to point out that that part of the information that was passed on as to the child's death would not stand to be an information what is required under the provisions of Cr.P.C. for registration of the case and taking up the investigation. When P.W.1 went to the police station and gave the complaint, Ex.P.1 came into existence and the case came to be registered. All would go to show that in the instant case, the prosecution has sufficient evidence and in the opinion of the court, the evidence of P.W.1 stood fully corroborated with the medical evidence and with all other circumstances attendant. All the contentions put forth by the appellant's side do not merit acceptance at all. 12.It is a horrible case where the appellant has murdered 20 days old female child mercilessly. The Court is of the considered opinion that it is a case where the appellant/accused could be https://hcservices.ecourts.gov.in/hcservices/ convicted under Section 302 IPC. Accordingly, the trial court found him guilty and awarded life imprisonment, which does not require any interference. 13.In the result, this criminal appeal fails and the same is dismissed, confirming the judgment of the trial court. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The I Additional Sessions Judge, Salem. 2.The Inspector of Police, Panamarathupatti Police Station, Salem District. 3.The Additional Public Prosecutor, High Court, Madras. +1 cc To Mr.I.C.Vasudevan, Advocate, SR.50253 CRL.A.NO.1021 OF 2007 ka [co] gkg/17.9 https://hcservices.ecourts.gov.in/hcservices/