(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the II Additional Sessions Division, Pondicherry, made in S.C.No.33 of 2004 whereby the sole accused/appellant stood charged under Sec.302 IPC, tried, found guilty as per the charge and awarded life imprisonment along with a fine of Rs.1000/- and default sentence.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the second wife and P.W.2 is the first wife of the accused. Since P.W.2 did not have issue, he married P.W.1. He had a boy through P.W.1, and they were all living together as tenants in the house which belonged to P.W.11. On the date of occurrence i.e., 23.3.2004 in the morning hours, the accused came to the residence and invited P.W.1 to stay with him in the house leaving the child with P.W.2. When P.W.1 refused, he talked in filthy language and also attacked P.Ws.1 and 2. Then, he took the child from the house. Thereafter, he did not return, nor the child was brought back. On the day, P.W.4 was actually in her field. During noon hours, she happened to see the accused going near the river side and taking the child with him. After some time, she went nearby the cattle shed where she found only the hair alone and did not see the child. But she found the dead body of the child on the back of the shed. Then she informed to P.W.5.
(b) When P.W.6 was returning in a boat towards the land, he saw the accused at about 50 to 75 meters away from the river, and he found the accused immersing a boy into the Godawari River. Thereafter he met P.W.1 when she was in the shop and informed her that he killed the child.
(c) P.W.3, who is the brother of P.Ws.1 and 2, gave evidence to the effect that entertaining suspicion over the fidelity of the deceased, the accused was questioning her. On the date of occurrence, P.W.1 met P.W.3 and informed that the accused had killed the child. Thereafter, P.W.1, the mother of the child, went to the respondent police station where P.W.16, the Head Constable, was available. In the presence of P.W.18, the Sub Inspector of Police, P.W.16 recorded the oral statement given by P.W.1 which is marked as Ex.P1, on the strength of which P.W.18 registered a case in Crime No.29 of 2004 under Sec.302 of IPC. The printed FIR, Ex.P13, was despatched to the Court.
(d) P.W.19, the Inspector of Police of the Circle, on receipt of the copy of the FIR, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P3. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P5. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(e) P.W.13, The Chief Medical Officer, attached to the Government General Hospital, Yanam, on receipt of the said requisition, conducted autopsy on the dead body of Nandikolla Dhana Kumar and has issued a postmortem certificate, Ex.P8, with his opinion that the death was due to asphyxia due to drowning.
(f) Pending the investigation, the accused was arrested, and he gave a confessional statement which was recorded by the Investigator. He was sent for judicial remand. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution marched 19 witnesses and also relied on 16 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. procedurally as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. He gave an explanation that the child died out of drowning when it fell into the river accidentally. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the punishment as stated above. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.M.N.Balakrishnan would submit that in the instant case, the prosecution has miserably failed to prove its case; that the prosecution has examined P.Ws.4 to 6 through whom the necessary circumstances were put forth; that it is true that P.Ws.1 and 2 have spoken to the fact that the child was taken from the house; that the defence plea was that the child fell accidentally into the river and died due to drowning; that the trial Court should have believed the defence theory because it was more probable than the one put forth by the prosecution; that P.W.6 was the only witness examined by the prosecution to speak about the fact that the child was actually with the accused, when he was immersing the boy into the Godavari River; but at the same time, P.W.6 has categorically admitted that at the time when he witnessed the same, he was about 50 to 75 meters away from the river, and hence he could not have witnessed the incident properly.
5.Added further the learned Counsel that as far as P.W.4 was concerned, the only evidence was that she found the accused roaming along with the boy in the field; but even assuming to be so, that will not in any way help the prosecution case, and hence the prosecution has miserably failed to prove its case; that under the circumstances, the lower Court should have acquitted the accused, but has taken an erroneous view finding him guilty, and hence he is entitled for acquittal in the hands of this Court.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that the dead body of a male child aged 3, the son of P.W.2 and the accused, was found. Following the inquest made by the Investigator and preparation of the inquest report, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given a categorical opinion as a witness before the Court and also through the postmortem certificate that the child died out of asphyxia due to drowning. The cause of death put forth by the prosecution was never disputed by the appellant before the trial Court. Hence the trial Court was perfectly correct in recording so.
8.In order to substantiate the charge levelled against the appellant/accused that it was he who immersed the child into the Godavari River and caused the death, the prosecution has put forth direct evidence through P.W.6 apart from other circumstances. It is an admitted position that P.Ws.1 and 2 are the wives of the accused, and P.W.2 had no issue. Then he married P.W.1 and had got a child through her. But, he was questioning her fidelity all along which was spoken to by P.W.3 and also by P.Ws.1 and 2. Added further, on the date of occurrence in the morning hours, he came to the house and called P.W.1 to stay with him leaving the child with P.W.2, and when she refused, he attacked both P.Ws.1 and 2, and apart from that, he immediately took the child. Now, at this juncture, it is pertinent to point out that there is a clear evidence to the effect that it was the accused who took the child from the house in the morning hours of the day. But, neither he returned nor the child was brought back. Hence he owes an explanation as to what happened to the child. It is true that he came forward with an explanation stating that the child died due to drowning when it fell accidentally into the river. But this explanation was found to be false in view of the evidence put forth by the prosecution. According to P.W.4, when she was in the field, she found the accused roaming with the boy, and after some time, she went nearby the cattle shed and found the hair of the child alone and on the back of the shed, the dead body of the child was found. P.W.6 has categorically stated that he found the accused actually immersing the child into the river. It is true that the witness has stated that when he found so, he was standing about 50 to 75 meters away from the river. At this juncture, the learned Counsel for the appellant would submit that he could not have seen the occurrence at all. This contention cannot be accepted for the simple reason that it was a river side, and the witness was standing just 50 or 75 feet away, and it was also a day time. Under the circumstances, he should have witnessed the occurrence.
9.The further circumstances which are against the accused are that if it is true as put forth by the defence plea that the child actually fell into the river accidentally and met its death, he should have immediately informed others or raised alarm or he should have made an attempt to save the child, but he did not do so, and instead, he absconded. On the contrary, he went to P.W.1 when she was in the house and informed her that he killed the child. At this juncture, it is pertinent to point out that P.Ws.1 and 2 are the wives of the accused. No reason or circumstance is brought about why they should come before a Court of law to give such a false evidence. Added further, it was P.W.1 who went to the police station the very day immediately thereafter and gave the complaint Ex.P1 wherein she has narrated the entire incident. All would go to show that the accused had taken the child from the house and actually immersed the child into the river and killed the same mercilessly, and he also came with the false explanation to offer that the child died out of drowning when it fell into the river accidentally. Now the contentions put forth by the learned Counsel for the appellant do not merit acceptance at all. Under the circumstances, the judgment of the trial Court finding the appellant/accused guilty under Sec.302 of IPC and awarding life imprisonment does not require any disturbance, and it has got to be sustained.
10.Accordingly, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court.
nsv To:
1.The II Additional District and Sessions Judge Pondicherry
2.The Inspector of Police Yanam Police Station Yanam, Pondicherry.
Crime No.29/2004
3.The Public Prosecutor High Court, Madras