Ganapathy Alias Ganesan vs The State

K.M. Natarajan, J.—This appeal has been directed against the conviction and sentence imposed on the appellant on 16-11-1989 by the

Sessions Judge. Pudukkottai Division at Pudukkottai.

The circumstance which has given rise to this appeal, may be stated briefly as follows :

P.W. 1. Narayanan, is the father of PW. 2 Madhvi. The accused is the husband of the said Madhvi. One year before the occurrence, the marriage

between the accused and Madhavi had been celebrated and it appears for about nine months, they lived happily. The accused suspected the

fidelity of Madhavi, as he though it that Vetrivel, the Aunt''s son of Madhavi, was having illicit intimacy with her. Madhavi became pregnant and

there was frequent quarrel between the accused and his wife and at the proper time, it appears. Madhavi was taken by her father to his house for

the purpose of delivery and she gave birth to a female child. The girl was named Deepa on the 16th day of delivery. After that, the accused took

away his wife to his house where he compelled her for intercourse for which she was not willing. She has sent word to her mother and the mother

of Madhavi went to her house and at that time the accused was absent. Thereafter, she brought Madhavi and the tender child to her house.

Thereafter it appears, the accused who was aggrieved over it arranged for a mediation which was effected. On the date of the occurrence in the

night time. PW. 1 and his wife were sleeping in the house keeping the door open. Madhavi slept with her sister. At about 9:30 p.m. The accused

demanded PW. 1, his father-in-law to send Madhavi with him, for which he replied after the day break, it can be talked about. At about 10:00

p.m. The accused again compelled his wife to come with him and she refused. Enraged on that, the accused snatched away the child from Madhavi

and ran from the house. P.Ws. 1 and 2 and the mother of PW 2 chased the accused. One Palaniappan, Arumugham and Karunanidhi also ran

behind them. Street lights were burning. The accused was found running with the child about one furlong in the cross road leading to Pathampatty.

While running, the accused threw the tender child in the well of one Muthusamy and PWs. 1 to 4 saw the same. PW 4, Arumugham went to this

house, brought the torch light and found the child in the well. He got into the well by tying a rope and found the child dead. Thereafter, at 2:00

a.m., PWs. 1, 3, and 4 went to the Police Station where PW 1, the father-in-law of the accused orally narrated about the occurrence to the Sub

Inspector of Police, PW 13. On the instruction of PW 13, the trainee Sub Inspector of Police reduced the same into writing, which document is

Ex. P1. Thereafter, the routine things followed, namely, writing the printed F.I.R. and sending it to the Court of Judicial Magistrate concerned, and

higher police officials. Then the investigating Officer, PW 14, took up investigation, examined the witnesses and arrested the accused, who was

produced by PW 8, the village Administrative Officer, and inquest was held on the dead body of the child and subsequently post-mortem was

conducted by PW. 10. Ex. P6 is the post-mortem report. After completing the investigation, PW. 14 laid the charge sheet.

2A. When the matter came up for trial before the learned Sessions Judge, Pudukkottai Division at Pudukkottai, the accused denied the offence

and claimed to be tried. 14 witnesses were examined on the side of the prosecution and 10 exhibits and 13 M.Os. have been marked. No witness

was examined on the side of the accused. On an appreciation of the evidence, the learned Sessions Judge, Pudukkottai found the accused guilty

u/s 304, Part II, convicted and sentenced him to undergo R.I. for 4 years. The correctness of the same is being challenged in this appeal.

The learned counsel for the appellant, Mr. N. Duraiswamy, drew at attention of this Court on certain lapses committed by the investigating

officer during the course of his investigation, which, according to the learned counsel, affects the case of the prosecution very much and throws

considerable doubt on the case. It was pointed out that the learned Sessions Judge has taken into consideration the extra judicial confession as per

the document. Ex. P3, which had persuaded the learned Sessions Judge to record a finding of conviction. On a careful consideration of the same, I

find the said extra judicial confession has been recorded by the village Administrative Officer, after the investigation has started. Though the learned

Sessions Judge has not discussed in detail about the implication of the said extra Judicial confession, I find that his decision was not influenced by

the said extra judicial confession, inasmuch as he had based his finding not solely on the said extra judicial confession, but on other material

evidence available on record.

One other submission that has been made on behalf of the appellant was the author of the F.I.R., namely, the trainee Sub Inspector of Police

had not been examined, but the said document had been proved only by the Sub Inspector of Police, namely, PW. 13. The learned Public

Prosecutor clarified that the Sub-Inspector, PW 13, was very much present in the police station at the time when the narration of events had been

given by P.W. 1 and on the instruction of PW. 13, the same was reduced to writing by the said trainee Sub Inspector of Police. In the above

circumstances, I find no merit in the submission of the learned Counsel for the appellant. The fact the eye-witnesses saw the accused carrying the

child in his hand and threw it into the well belonging to one Muthuswamy, with the help of the street lights even though the time of occurrence was

10:00 p.m. in the night, in my opinion, has been established to the satisfaction of this court by the evidence, that has been adduced by the

prosecution. Even though there is a interlineation in Ex. Ps. it does not throw any doubt on the case of the prosecution and the same has been done

to add some information that has been received at the time of recording of the same. In my view of the account of the eye witnesses before the

lower Court was spontaneous, trustworthy, and credible and there is no circumstance to doubt their testimony. Therefore, I am of the opinion that

the learned Sessions Judge has correctly appreciated evidence and reached the correct conclusion that the accused due to bickering with his wife,

snatched the child from his wife, ran away in the street, on the night of the occurrence and threw the child in the well of Muthuswamy and the child

got drowned in the water and was killed and the charge against the accused had been proved beyond any doubt.

On a reading of the judgment of lower Court, it is seen that the learned Sessions Judge without much discussion and reasons had recorded a

finding of conviction not u/s 302, but u/s 304, Part II. However, I am not inclined to probe the matter and leave the same at that. The learned

Sessions Judge has sentenced the accused to undergo R.I. for four years which in my opinion, is quite reasonable and there is no extenuating

circumstance to reduce the same.

In the result, the conviction and sentence passed by the learned Sessions Judge is confirmed and the appeal is dismissed. Consequently,

Crl.M.P. No. 16693 of 1989 is also dismissed.

The learned Counsel for the appellants, Thiru N. Duraiswamy, pleaded that the accused appellant is entitled to the remission granted by the

Government of Tamil Nadu under the various Government Orders which came into existence after the conviction was awarded. On which

representation, there cannot be any two opinion. The accused is on bail. He shall surrender to his bail bonds forthwith to serve the unexpired

portion of the sentence failing which warrant of arrest shall be issued by the Lower Court. The Superintendent Central Prison. Tiruchirappalli, shall

give the remission to which the accused is entitled to, under the relevant G.Os. which have come into existence after the conviction was awarded.

Appeal dismissed.