IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.25 of 2010 Rajkumar .. Appellant (Accused) Vs. The State rep. by Inspector of Police, Erode Taluk Police Station, Erode District. Crime No.106 of 2009 .. Respondent (Complainant) The criminal appeal has been preferred under Section 374 (2) Cr.P.C. against the judgment of the learned Additional District and Sessions Court,Fast Track Cort No.1, Erode, made in S.c./No.55 of 2009 dated 12.11.2009. For Appellant : Mr.N.Manokaran For Respondent : Mr.V.R.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.1, Erode, made in S.C.No.55 of 2009 whereby the sole accused/appellant stood charges, tried and found guilty of murder and awarded life imprisonment along with fine of Rs.500/- in default to undergo six months rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 is the wife of the appellant/accused. The marriage took place between them on 6.4.2008 and as a result, she became pregnant. She was working in the place nearby and since the accused entertained suspicion, she was asked not to go for work. He also suspected her fidelity. She often used to go to her mother P.W.2's house and their relatives used to pacify the situation. On 8.3.2009, the accused came to the house of P.W.2. He suspected his https://hcservices.ecourts.gov.in/hcservices/ wife and quarrelled with his wife P.W.1 for talking with other persons. On 9.3.2009, P.W.1 gave a complaint before the All Women Police Station which was marked as Ex.P.15. The accused and P.W.1 were called. They were advised by the Police and they were asked to come on 15.3.2009 for counselling. (ii) While the matter stood thus, P.W.1 came to the house of P.W.2 for delivery and the child was born. On 12.3.2009, the accused phoned over to P.W.1 and told her that if she did not come home with the child, he would kill the child, P.W.1 and P.W.2, her mother. P.W.1 told the same to P.W.2. The next day on 13.03.2009, at 12.00 noon the accused phoned over to P.W.1 and again threatened her that if she did not come home along with the child, he would kill her, P.W.2 and the child. The same was also informed to P.W.2 by P.W.1. (iii) On the same day, at about 3.30 p.m., the accused came in Yamaha motor bike along with his friend P.W.3, Shanmugavel. He asked P.W.1 to come home along with the child. She refused to do so. The accused became wild. The accused pushed P.W.1 and went to P.W.2 who was having the child. He also pushed P.W.2 and attempted to take the child. P.W.1 tried to take the child from him but the accused took the child and dashed the head of the child on the compound wall and threw the child and ran away from the place of occurrence. (iv) The child was immediately taken to the Government Hospital. At about 6.25 p.m., P.W.12 doctor medically examined the child and declared dead. An intimation was given to the Taluk Police Station, Erode. (v) P.W.16, Sub Inspector of Police, on receipt of the intimation, went to the hospital and recorded the statement of P.W.1 and the same was marked as Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.106/2009 under section 302 I.P.C and the F.I.R. Ex.P8 was despatched to Court. (vi) P.W.17 Inspector of Police, took up investigation. He went to the spot, made an inspection and prepared the observation mahazar Ex.P9 and drew a rough sketch Ex.P10. He conducted inquest on the dead body of the deceased in the presence of witnesses and prepared Ex.P11 inquest report. Thereafter, the dead body was subjected to post mortem. (vii) On receipt of the requisition made, P.W.11 doctor conducted autopsy on the dead body of the deceased child and found the following injuries: "External injuries: "1.Contusion over right side of the forehead and cheek 2. Abrasion over the right side of abdomen." He gave the post mortem certificcate, Ex.P.3 wherein he has opined that the deceased child died out of shock and haemorrhage due to injury to brain (vital organ). https://hcservices.ecourts.gov.in/hcservices/ (viii) On 14.3.2009, the accused was arrested. He gave confessional statement and the same was recorded. He produced M.O.1 two wheeler which was recovered under a cover of mahazar. Thereafter, he was sent for judicial remand. On completion of the investigation, the Investigating Officer filed a final report. (ix) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and relied on 11 exhibits and 1 material object. 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 case and he denied them as false. No defence witness was examined but one document, Ex. D1 was marked on the side of the defence. After 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 murder and awarded the punishment of life imprisonment along with fine and default sentence. Hence, this appeal at the instant of the appellant/accused. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that the occurrence had taken place at 3.30 p.m. on 13.3.2009. P.Ws. 1 and 2 were examined as the eye witnesses. P.W.1 is the wife of the accused and P.W.2 is the mother of P.W.1, hence, she is closely related. If the evidence of the so called eye witnesses are put to careful scrutiny test, their evidence should have been discarded. There are lot of discrepancies in their evidence. The trial Court should have rejected the evidence outright. Apart from that, according to the doctor who conducted post mortem, there is only contusion found. P.W.2 has stated in her evidence that the accused dashed the head of the child 4 to 5 times on the wall. Therefore, accordingly to her version, it would have caused bleeding injuries. But according to post mortem doctor, there is only contusion and there is no external injuries. Therefore, it can be well stated that the ocular testimony projected through the prosecution never corroborates with the medical evidence. Added further learned counsel, the recover of M.O.1 two wheeler has nothing to do with the crime in question. The prosecution has not proved the guilt of the accused beyond reasonable doubt. 4. As the second line of argument, the learned counsel would submit that if the court comes to a conclusion that the prosecution has proved its case, even as per the prosecution case, there was a quarrel preceding the occurrence. The accused came to the house of P.W.2 to take his wife, P.W.1 along with the child, but she refused. At that time, the accused tried to take the child. P.W.1 and 2 wanted to snatch the child from the hand of the accused. In that course, the head of the child hit on the wall. Thus it is quite clear that the act of the accused is neither intentional nor pre- mediated but only due to sudden provocation he has acted so. This factual position has got to be considered by the Court. https://hcservices.ecourts.gov.in/hcservices/ 5. The Court heard the learned Additional Public Prosecutor for the State and paid its anxious consideration on the submissions made. 6. It is not in controversy that a 15 days old child of P.W.1 died in the incident that had taken place on 13.3.2009 at about 3.30 p.m. in the house of P.W.2. Following the inquest made by the Investigating Officer, the dead body of the child was subjected to post mortem. The doctor who conducted post mortem has categorically opined that the child died out of homicidal violence. Though it was contended by the defence before the trial Court and equally here also that only due to accidental hit death was caused to the child, it cannot be accepted on the face of the evidence available on record through P.Ws. 1 and 2. P.W.1 is the mother of the child and P.W.2 is the mother of P.W.1. Apart from that, there was an independent witness also viz., P.W.3 who accompanied the accused to the house of P.W.2 and also the friend of the accused/appellant. From his evidence, it is quite clear that the accused came to the house of P.W.2 along with P.W.3 and quarrelled with his wife who refused to come to his house along with the child. At that time, the accused made attempt to take the child and dragged the child and dashed the child on the wall and caused death. The child met instantaneous death. The contentions putforth by the learned counsel for the appellant there was no external injuries found on the body of the child and there was only contusion and the evidence of the P.Ws. 1 and 2 does not corroborate with the medical evidence are concerned, this contention cannot be accepted. It was the child of P.W.1. When a mother sees her child dashed on the wall and killed, quite naturally, she would have come with an exaggerated version that the accused dashed the child 4 or 5 times on the wall. It is pertinent to point out that the child is only 15 days old and just a hit on the wall would be suffice to cause death. Hence, it cannot be stated that the evidence of ocular testimony projected through P.Ws.1 to 3 does not corroborate with the medical evidence. Under such circumstances, the prosecution has sufficiently proved that it was the accused who dashed the child on the wall and caused death. Hence, the trial Court is perfectly correct in recording the factual finding that the accused murdered his child. 7. As far as the second line of argument is concerned, the Court is unable to agree with the learned counsel for the appellant. It is an admitted case that on the date of occurrence, the accused went to the house of P.W.2 and called his wife back home to which she refused . On the earlier occasion, there was a complaint given to the All Women Police Station and the matter was pending enquiry. Again, the accused went to the house of P.W.2 and quarrelled with her. If really a quarrel has taken place between the husband and wife, the accused might have grievance only against his wife and not against the 15 days old child. There is no reason to dash the child on the wall. It was a case that without any reason whatsoever the accused had dashed the child against the wall and committed the heinous crime of infanticide. The contention of the learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the appellant is rejected. The trial Court has marshalled the evidence proper and has taken a correct view in imposing life sentence to the accused and this Court finds no reason to disturb the judgment of conviction and sentence passed by the trial Court. 8. Accordingly, the judgment of conviction and sentence imposed on the appellant by the trial Court is affirmed. The criminal appeal fails and the same is dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vsi To 1. The Additional District and Sessions Judge, Fast Track Court No.1, Erode, 2. do thro the Principal District and Sessions Judge, Erode 3. The District Collector, Erode 4. The Director General of Police Mylapore, Chennai 5. The Inspector of Police, Erode Taluk Police Station, Erode District. 6. The Public Prosecutor, High Court, Chennai. 7. The Superintendent Central Prison, Coimbatore Copy to The Section Officer Criminal Section, High Court, Madras 1 cc to Mr.N. Manokaran, Advocate, Sr. 18068 CRL.A.No.25 of of 2010 JRG (CO) kk 1/4 https://hcservices.ecourts.gov.in/hcservices/