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R.Sivakumar v. The State of Tamil Nadu - CRL.A (MD)NO.512 OF 2005  RD-TN 1561 (21 April 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21/04/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
CRL.A (MD)NO.512 OF 2005
R.Sivakumar .. Appellant Vs.
The State of Tamil Nadu,
rep. by its Inspector of Police,
Medical College Police Station,
Crime No.164 of 2003) .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge (FTC No.I), Thanjavur made in S.C.No.46 of 2004, dated 26.05.2004 For Appellant : Mr.S.Mohandoss
For Respondent : Mr.N.Senthurpandian, APP
(The judgment of the court was made by M.CHOCKALINGAM, J.)
Challenging the judgment of conviction and sentence imposed by the learned Additional District and Sessions Judge, (FTC No.I), Thanjavur, this appeal has been brought forth by the sole accused/appellant in S.C.No.46 of 2004, whereby he stood charged, tried and found guilty under Sections 307 and 302 IPC and awarded 10 years RI under Section 307 IPC and life imprisonment under Section 302 IPC.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the wife of the accused. They had a female child. P.Ws.2,3,4 and 7 were all neighbours of P.W.1. P.W.5 is the father of the accused and he was residing in the opposite house. P.W.6 is the elder brother of P.W.1. Prior to 8.8.2003, the accused informed to P.W.1 that there were lot of indebtedness and he could not tolerate the pressure given by the creditors and under these circumstances, they should consume poison. P.W.1 replied that they could earn and pay off the debts.
b)On 8.8.2003 at about 9.00 p.m. the accused came to the house after finishing his work. At about 10.30 p.m., P.W.1 and the child were sleeping. At about 11.30 p.m., P.W.1 was able to hear the cry of the child and she woke up. When she woke up, she witnessed that the accused was strangulating the child. Immediately, she made an attempt to stop the same. But, the accused took the child and threw her into the well. Immediately, he dragged P.W.1 inside the house and closed the door. He took the crowbar, M.O.1 and attacked her thrice on her flank. Further, he took Arivalmanai, M.O.2 and attacked her on her head, stomach and on different part of her body. This was witnessed by the neighbours and they have also caught the accused immediately. c)P.W.1 was immediately taken to the Thanjavur Medical College Hospital, where P.W.11, the Doctor, who was on duty at that time, gave treatment to P.W.1. Ex.P.8, the Accident register was issued in respect of P.W.1. X-Rays were taken by P.W.12, the Doctor. Ex.P.9 is the opinion of the X-Ray report. An intimation was given to the respondent police station. P.W.16, the Sub Inspector of Police, on receipt of the intimation, went to the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, a case came to be registered in Crime No.164 of 2003 under Sections 302 and 307 IPC. Ex.P.10, the FIR was despatched to the Court.
d)P.W.17, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.11, the rough sketch. He recovered M.O.1 under a cover of mahazar. He conducted inquest on the dead body of the child in the presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest report. The dead body of the child was sent to the hospital for the purpose of autopsy along with the requisition. e)P.W.10, the Doctor attached to the Thanjavur Medical College Hospital, on receipt of the requisition, has conducted post-mortem on the dead body of the child and has issued Ex.P.7, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of asphyxia due to smothering. f)Pending investigation, P.W.17 arrested the accused on 9.8.2003. He voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.13. Pursuant to the confessional statement, the accused produced M.O.2, arivalmanai, which was kept in the backside of the house of the accused and the same was recovered under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the child and the M.O. recovered from the accused pursuant to his confessional statement were sent for chemical analysis. Ex.P.14 is the report from the Forensic Sciences Department.
g)P.W.18, the Inspector of Police, took up further investigation. On completion of the investigation, he 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 18 witnesses and relied on 14 exhibits and 3 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. The accused admitted the evidence of the witnesses as true. No defence witness was examined. The trial court heard the arguments advanced on either side, looked into the materials available, took the view that the prosecution has proved its case beyond reasonable doubt and found the accused/appellant guilty as per the charge and awarded punishment as referred to above. Hence, this appeal at the instance of the appellant.
4.The learned counsel for the appellant, inter-alia, would submit that the prosecution has not proved its case beyond reasonable doubt; that the medical evidence did not support the prosecution case; that the confessional statement and the alleged recovery pursuant to the confessional statement were all nothing but an introduction in order to strengthen the prosecution case and thus, the prosecution did not bring home the guilt of the accused.
5.Added further the learned counsel that in the instant case, even as per the prosecution, the accused was suffering from indebtedness and due to the mental pressure, he has killed his child and also attempted on the life of his wife; that in his statement, he has stated that if he died, both wife and children would become orphans and under these circumstances, it would be better to kill both and thus, this would indicate that he was under frustration and hence he has killed his child and that, this is a fit case where mercy has got to be shown.
6.Heard the learned Additional Public Prosecutor on the above contentions. The Court has paid its anxious consideration on the submissions made.
7.In the instant case, it is not the fact in controversy that the child of the accused and P.W.1 was done to death in an incident that took place on 8.8.2003. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has opined in Ex.P.7, the post-mortem certificate that the deceased would appear to have died of asphyxia due to smothering. This fact was never questioned by the appellant at any stage of proceedings and hence, it could be recorded so.
8.In the instant case, P.W.1 is the wife of the accused. The child, which was killed in the incident, was the child of both accused and P.W.1. P.W.1 has narrated the entire incident in her evidence. There is no reason noticed by the Court to cast any doubt on her evidence. According to her, at about 11.30 p.m., all were sleeping in the house. At that time, she heard the distressing cry of the child and she woke up and found that the accused was strangulating the child and he took the child outside and she attempted to restrain him. But, the accused threw the child into the well. He also dragged P.W.1 inside and closed the door also. He took M.O.1, crowbar and attacked her thrice on her flank and further, he took M.O.2, arivalmanai and attacked her on different part of the body. Despite cross examination in full, her evidence stood. Further, her evidence was in corroboration with the evidence of neighbours, who were examined as P.Ws.2 and 3, who found the accused at the place of occurrence along with the crowbar. In the instant case, the medical opinion was canvassed in respect of the death of the child. P.W.10, the Doctor, who conducted post-mortem, has deposed that the deceased would appear to have died of asphyxia due to strangulation. This was spoken not only by P.W.10, the Doctor, but also found in Ex.P.7, the post-mortem certificate.
9.So far as the attempt to murder is concerned, apart from the examination of P.W.1, the prosecution also examined P.W.11, the Doctor, who has issued Ex.P.8, the accident register copy, wherein all the injuries were found to be grievous. This would indicate that she has narrowly escaped. Yet another circumstance is the recovery of M.O.2, arivalmanai, which was recovered from the backside of the house of the accused pursuant to his confessional statement. Thus, the prosecution, in the instant case, had overwhelming evidence.
10.Coming to the question of nature of the act of the accused, the Court cannot but come to an irresistible conclusion that the act of the accused would attract the penal provisions of murder. In the instant case, even assuming that the accused was liable to pay debts, it cannot be a course to be adopted by a reasonable or prudent man under given situation. The contention put forth by the learned counsel for the appellant is that it passed in the mind of the accused that if he died, both his wife and child would become orphans and that, he had killed his child when he was under frustration. The Court is of the considered opinion that it cannot be a reason to show any leniency whatsoever. The accused has killed his child in a gruesome manner and has also attempted on the life of his wife, who has narrowly escaped and fortunately, she is P.W.1 in the instant case. Thus, the act of the accused would attract the penal provisions of murder and also the penal provisions of attempt to murder. The lower court has marshalled the evidence properly and found the accused/appellant guilty as per the charges. This Court is unable to notice anything in wrong to disturb the judgment of the lower court either on facts or in law and there is no infirmity found in the judgment of the lower court in recording conviction.
11.In the result, the criminal appeal fails and the same is dismissed.
12.Mr.S.Mohandoss, counsel appearing on behalf of the appellant as legal aid counsel is entitled to get remuneration from the Legal Aid, Madurai. To
1.The Additional District and
FTC No.I, Thanjavur
2.The Inspector of Police,
Medical College Police Station,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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