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R.KUPPUSAMY versus THE STATE

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R.Kuppusamy v. The State - Criminal Appeal (MD) No.224 of 2005 [2007] RD-TN 699 (26 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26/02/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE G. RAJASURIA

Criminal Appeal (MD) No.224 of 2005

R.Kuppusamy .. Appellant Sole Accused Vs

The State

By the Inspector of Police,

Ambeiligai Police Station,

Dindigul District. .. Respondent Complainant

Appeal filed against the Judgment of conviction and sentence imposed upon the appellant by the Learned Additional District and Sessions Judge (Fast Track Court),Dindigul in S.C.No.75/2005 dated 13.4.2005. For Appellant ... Mr. G.R.Swaminathan For Respondent ... Mr.M.Daniel Manoharan Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) The sole accused who faced the trial and found guilty under Section 302 IPC and awarded life imprisonment by the learned Additional District and Sessions Judge (Fast Track Court), Dindigul, in S.C.No.75/2005, has challenged the conviction and sentence in this appeal.

2.The short facts necessary for disposal of this appeal can be stated thus:

(a)P.W.1 is the Village Administrative Officer of Veriappur. On 18.3.2005, at about 12 noon, when he was in his office along with his Assistant Kumaravel, the accused/appellant appeared before him and gave a confessional statement that he threw his child in a well and caused the death of the child. The statement was reduced to writing and marked as Ex.P.1. P.W.1 prepared his report under Ex.P.2. He produced the accused along with Exs.P1 and P2 report before the Sub Inspector of Police, P.W.9, who was on duty, at about 1.30 p.m., i.e, 13.30 hours on 18.3.2005.

(b)On the strength of Exs.P1 and P2, a case was came to be registered by the respondent Police in Crime No.61/2005 under Section 302, IPC. The Inspector of Police, P.W.11, took up the investigation on receipt of the Express First Information Report (F.I.R.), Ex.P.6 which was despatched to the Court. He interrogated the accused, when he came forward to give a confessional statement and the same was also recorded by the investigating officer. He proceeded to the scene of occurrence, conducted inquest on the dead body of the child and prepared the Inquest Report in the presence of the witnesses and panchayatdars. He prepared the Observation Mahazar and also a rough sketch. Following the same, the dead body was subjected to Postmortem by P.W.10, the doctor attached to the Government Hospital. He opined that the child would appear to have died before 5-6 hours before the commencement of the autopsy due to Asphyxia due to drowning. Ex.P.8 is the Postmortem Certificate issued by him. (c)The accused was sent to judicial remand and the Material Object which was recovered from the place of occurrence was sent to the Court. On completion of the investigation, the investigating officer filed the final report. The accused was committed to the Court of

Sessions. In order to substantiate the charge levelled against the accused, the prosecution marched 11 witnesses and relied on eleven exhibits and one material object. On completion of evidence on the side of the prosecution, the accused/appellant was questioned under Section 313 Cr.P.C. He denied them as false. No defence witnesses were examined. After hearing the arguments advanced, on the scrutiny of the materials, the Trial Court took a view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and sentenced to undergo life imprisonment, which is the subject matter of challenge before this Court.

3.Advancing his arguments on behalf of the appellant/accused, Mr.G.R.Swaminathan, would submit that in the instant case, the entire case of the prosecution rested on the extra judicial confession alleged to have been made by the accused/appellant to P.W.1, the Village Administrative Officer at about noon hours, i.e., at 12 O' clock on 18.3.2005. The said document Ex.P.1 could not have been come into existence as put forth by the prosecution for more reasons:

(a)P.W.1, the Village Administrative Officer has candidly admitted that he has seen the accused only once. They were not previously acquainted. He did not know whether the accused was employed in Pondicherry and thus, in such circumstances, it is highly improbable and impossible that the accused met the Village Administrative Officer and gave such a confessional statement and thus, Ex.P.1 was nothing but one created and fabricated to suit the prosecution case. (b)Added further, the counsel stated that in the instant case, the writing of the charge would read that the child was born in the tenth month from the time of marriage and thus, it could be easily inferred that the fidelity of the wife was suspected. If it be so, the wife of the accused was a necessary and material witness. But, she was not examined for the reasons best known to the prosecution that was fatal to the prosecution case. (c)Thirdly, even from the evidence of P.W.1, he took the accused/appellant at about 12.30 hours and produced before the Police Station and prepared Ex.P.1 by 12.20 p.m., and even the confessional statement alleged to have been recorded by the investigating officer was at about 1.30 p.m. and it is pertinent to point out that the Police Station is situated about 15 kilometres from the place of occurrence. The preparation of Ex.P.1 covering the distance of 15 kilometres, producing the accused before the Police Station within ten minutes and the recording of the confessional statement by the investigating officer at about 1.30 p.m., all would go to show that the documents could not have come into the existence, as put forth by the prosecution, nothing but it is a falsehood and thus, all these documents should have been rejected.

4.Added further, the learned counsel for the appellant/accused submitted that the medical evidence was not in support of the prosecution case. The doctor thoroughly opined in the Postmortem certificate that the child died out of Asphyxia by drowning and he further placed that no water is found in the lungs. But, the witness spoke that the child was floating and if it be so, and if the child had died out of Asphyxia by drowning, the water should have been found. But, the doctor has given the answer in the negative aspect. The medical theory clearly speak to the fact that if the dead body is found floating, it could have been for a minimum of 24 hours subsequent to the time of death. But, in the instant case, according to the prosecution, the child was actually thrown at about 11 O' clock and it was reported to P.W.1, the Village Administrative Officer at 1.20 p.m. and the case was registered at about 1.30 p.m. and the entire case was investigated upon immediately. Thus, the medical theory was against the entire prosecution case and all these put together, would go to show that all was well with the prosecution case.

5.In the instant case, there was no eye witness and the entire case was depending upon the circumstances that the child was taken out from the well and in the instant case, according to the evidence of P.Ws.2 and 3, the child was taken from the well even before the place was identified by the accused. Hence, it is highly doubtful whether those documents relied upon by the prosecution could have come into existence as put forth by the learned counsel for the appellant. In the instant case there is no evidence at all. Hence, the prosecution case should have been rejected by the Court of Sessions directly. But, it was not done so and hence, the Trial Court has taken erroneous view both, factually and legally and hence, the case of the prosecution must be rejected by the Court and the accused/appellant is entitled to for the acquittal.

6.Heard the learned Additional Public Prosecutor on the above contentions.

7.The Court has paid its anxious consideration on the submissions made. The accusation that was levelled against the accused was that he threw his ten months old child into the well mercilessly and the child died due to Asphyxia due to drowning. In order to substantiate, in the instant case there is no direct evidence speaking to the fact that the accused threw the child into the well. But, in this case, the prosecution had the evidence through P.W.1, the Village Administrative Officer to whom the confessional statement was made by the accused. Secondly, the child was found floating in the well and was taken from the well. Thirdly, the medical opinion that was confessed in favour of the prosecution theory that the child died due to asphyxia by drowning. From this point of view, the contentions of the learned counsel for the appellant have to be considered.

8.The 1st contention that Ex.P.1 could not have come into existence as put forth by the prosecution for the reasons that the accused was not acquainted to the Village Administrative Officer and that he could not have gone to him and make such a confessional statement. It is old principle of law that the extra judicial confession was a weak piece of evidence. But the law is well settled that on the basis of the extra judicial confession only a conviction can be sustained. But the Court must be mindful of the cause that before accepting the extra judicial confession, it must satisfy three tests, namely: "1.To whom the said extra judicial confession is made?; 2.Whether the person to whom the extra judicial confession is made, his evidence inspires the confidence of the Court?; and

3.Whether the extra judicial confession is consistent to the prosecution case?" If these tests are applied to the present case, the Court is thoroughly satisfied that all these extra judicial confessions can be accepted.

9.It is not in controversy that the accused though is the native of the place in question, was employed at Pondicherry. He came to the village in the previous evening with his family and there was a commitment for the child in a temple. Accordingly, he invited his parents. But, the parents were not ready to come and his father was telling that from the date of birth of the child, they were not leading a happy life and therefore, he should clear out the child. This is not for the first time, but it was going on in the past and this was the occasion. So, the accused took the child and threw into the well and the child died within a short time by Asphyxia due to drowning and in the instant case that if the occurrence had taken place at about 11 a.m. he rushed to P.W.1, the Village Administrative Officer of the same place and informed him the same and P.W.1 reduced the same into writing which is marked as Ex.P.1 and he also prepared Ex.P.2, his report. Now, in the instant case the contention put forth by the learned counsel for the appellant is that the accused and the Village Administrative Officer was not known to each other previously. Hence, there was no occasion for him to go and inform the Village Administrative Officer, cannot be countenanced. It is not the case that they were not known to each other. They know each other, but they have no acquaintance. Under such circumstances, when the accused threw the child in a well, immediately it would have passed in his mind that it is his own child and his actual conscious was pricking and immediately he himself spoke about it as he could not speak the same to the family members because they were all against him. So, he went to the Village Administrative Officer and

informed him. Then, for the question automatically arises whether the Village Administrative Officer had got nothing to do with or inimical terms with the accused, the answer is negative because there is no reason or circumstance is shown to the Court why the Village Administrative Officer must prepare Ex.P.1 document of his own accord which is against the interest of the accused or he must take the accused to the Police Station immediately within a short span of time. In the instant case, Exs.P.1 and P.2 and also the F.I.R. have reached the learned Judicial Magistrate within a short span of time. All would go to show that the accused was produced before the Police Station by P.W.1 along with Exs.P1 and P2 and a case came to be registered immediately as put forth by the learned counsel for the appellant and therefore, the first contention that Ex.P.1 has not come into existence has got to be discountenanced.

10.Secondly, it is true that the evidence of Sub Inspector, who registered the case stated that the Inspector of police who took up the investigation have spoken to the fact that the accused was produced before the investigating officer, P.W.11 at about 12.30 hours, a case was came to be registered, confessional statement was recorded and in the time factor, there is some discrepancy of within a period of an hour and from this point of view, the Court is unable to agree with the counsel that by giving much weightage to the time discrepancy of one hour, the true and genuineness of the prosecution cannot be thrown out.

11.Thirdly, the non examination of the wife of the accused cannot be said to be a reason to reject the prosecution case for the simple reason that the child of both the spouses was killed. Even, if she had been examined, the nature is that one cannot expect her to speak against her husband to give evidence and this non examination of the wife of the accused cannot be given any importance in the instant case and the last one is the medical evidence in the opinion of the Court was in full support of the prosecution. The mistake that was committed by the medical person was that he has not spoken about the availability of the water inside the lungs. But, he has spoken anywhere that the water was not found. He has given a categorical opinion that the child was actually died by Asphyxia due to drowning. The child was taken from the well. It is evident from the version of P.Ws.2 and 3 and thus in the instant case, the medical opinion through the Postmortem doctor and the certificate would show that the child died due to Asphyxia by drowning.

12.At this juncture, the Court has to necessarily state that consistent suggestions were put to the witness that the child actually fell into the well in the previous evening, i.e., on 17.3.2005, which would go to show that the accused who was all along with his family on 17th night and 18th morning, came with a false suggestion that the child fell into the well on 17.3.2005. But, he came with a different stand when he was questioned under section 300 of I.P.C. He stated that he went to the well to take bath at 8.00 a.m. on 18.3.2005 and when came back, he found the child missing. He went to the Police Station and a false case has been foisted against him. All these go to show that the accused who is the father of the child has mercilessly killed the child by throwing the child into the well and the death of the child was caused by Asphyxia due to drowning. Therefore, the contention of the learned counsel for the appellant that the act of the accused would not amount to murder under the penal provisions of section 300, IPC or any other provisions does not merit acceptance. Hence, it is rejected.

13.Hence, the lower Court has perfectly marshalled the evidence, considered the same and found the accused guilty under Section 302 IPC either factually or legally. In the circumstances, the judgment of the lower Court does not require any interference and the same is affirmed. The appeal fails and the same is dismissed.

To

1.The Additional District and Sessions Judge

(Fast Track Court),Dindigul.

2.The Principal Sessions Judge, Dindigul.

3.The Inspector of Police,

Ambeiligai Police Station,

Dindigul District.

4.The Additional Public Prosecutor,


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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