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2003 DIGILAW 990 (MAD)

Kuppusamy v. State, by Sub-Inspector of Police

2003-07-08

M.KARPAGAVINAYAGAM, S.ASHOK KUMAR

body2003
Judgment :- M.Karpagavinayagam, J. Kuppusamy, the accused was convicted for the offences under Sections 302 (2 counts), 307 and 309 IPC and sentenced to undergo life imprisonment (2 counts), rigorous imprisonment for seven years and simple imprisonment for one year respectively. The sentences imposed on the appellant/accused were directed to run concurrently. Challenging the said conviction and sentence, this appeal has been filed. 2. Brief facts leading to conviction are as follows:- (a) Tamilarasi, P.W.1 got married to the accused some years back. Out of their wedlock, two children, namely, Vignesh (deceased 1) and Mythili (deceased 2) were born. The accused Kuppusamy did not earn sufficient money from his business. Therefore, he got dejected. There used to be frequent quarrels between the accused and P.W.1 Tamilarasi. Though Shanmugam, the father of P.W.1 would intervene and pacify both the husband and wife, they used to indulge in frequent encounter. (b) The fateful occurrence took place on 2-8-1999 midnight. As usual, quarrel began between the accused-husband and P.W.1, the wife. Children were sleeping then. At a particular point of time, the accused locked the house from inside and attempted to attack the wife by inflicting injury on the neck of P.W.1. Then, he cut the throat of both the deceased - Vignesh and Mythili. Thereafter, he made an attempt to commit suicide by cutting his throat with M.O.9 knife. (c) On hearing the sound, T.K.Shanmugam, the father of P.W.1, who was residing nearby, along with other neighbours - P.W.2 Iswaran and P.W.3 Karunanidhi, came to the house of the accused. On noticing that the door was locked inside, they peeped through the window. They saw the children and P.W.1 lying on the ground with bleeding injuries on their neck and found the accused cutting his throat by himself. Immediately, P.Ws.2 and 3 climbed the house, went to the roof and after removing the tiles, made an entry into the house and opened the lock from inside. (d) Then, all the others went inside the house and prevented the accused from causing further injuries on the throat. Immediately, they arranged for a taxi and took the injured - P.W.1, the accused and the two deceased children to the Government Hospital, Gobichettipalayam. (e) On 3-8-1999 at about 3.10 a.m., P.W.7, the Medical Officer attached to the Gobichettipalayam Government Hospital, gave treatment to the accused. He issued Ex.P-5 accident register copy and Ex.P-11 certificate. Immediately, they arranged for a taxi and took the injured - P.W.1, the accused and the two deceased children to the Government Hospital, Gobichettipalayam. (e) On 3-8-1999 at about 3.10 a.m., P.W.7, the Medical Officer attached to the Gobichettipalayam Government Hospital, gave treatment to the accused. He issued Ex.P-5 accident register copy and Ex.P-11 certificate. He examined P.W.1 Tamilarasi and issued Ex.P-7 accident register copy and Ex.P-12 certificate. He found that Vignesh (first deceased) was dead. Since Mythili (second deceased) was alive, he gave treatment to her and issued Ex.P-9 accident register copy. Since Vignesh was dead, P.W.7 Doctor sent Ex.P-8 death intimation to Police. A few hours later, Mythili also died. Therefore, he sent another intimation Ex.P-6 regarding the death of Mythili. In the meantime, both the accused and P.W.1 were forwarded to Coimbatore Government Hospital for further treatment along with intimation Ex.P-10. (f) Meanwhile, father of P.W.1 went to Bangalapudur Police Station and lodged Ex.P-24 complaint on 3-8-1999 at about 9.30 a.m. P.W.11 Sub-Inspector of Police took the complaint and registered the same for the offences under Sections 302, 307 and 309 IPC. Ex.P-15 is the F.I.R. (g) P.W.12 Inspector of Police, on receipt of message, took up investigation. He went to the scene of occurrence and prepared Ex.P-27 observation mahazar and drew Ex.P-28 rough sketch. He recovered M.O.7 blood stained earth, M.O.8 controlled earth, M.O.9 blood stained knife, M.Os.10 & 11 blood stained bed sheets and M.O.12 clotted blood under Ex.P-29 mahazar. Then, he came to the hospital and conducted inquest over the body of both the deceased. Ex.P-30 is the inquest report relating to the body of the first deceased and Ex.P-31 is the inquest report relating to the second deceased. Then, both the dead bodies were sent for post-mortem. (h) P.W.8 Doctor conducted post-mortem on the body of the first deceased - Vignesh and found cut injury on his throat. He gave an opinion in Ex.P-14 post-mortem certificate that the death would have been due to shock and heamorrhage. Then, he commenced post-mortem on the body of the second deceased - Mythili and found as many as three injuries on the body of the second deceased and opined in Ex.P-16 post-mortem certificate that the death could have been due to shock and haemorrhage due to these injuries. Then, he commenced post-mortem on the body of the second deceased - Mythili and found as many as three injuries on the body of the second deceased and opined in Ex.P-16 post-mortem certificate that the death could have been due to shock and haemorrhage due to these injuries. (i) After the treatment was over, on 4 - 9 - 1999, the accused surrendered before P.W.12 Inspector of Police, who recovered M.O.15 blood stained lungi, M.O.16 blood stained shirt and Ex.P-33 out-patient chit, under Ex.P-34. Then, the accused was sent for judicial remand. The articles were arranged to be sent for chemical examination. After completion of the investigation, P.W.12 Inspector of Police filed the charge sheet against the accused for the offences under Sections 302, 307 and 309 IPC. (j) During the course of trial, on the side of prosecution, P.Ws.1 to 12 were examined, Exs.P-1 to P-35 were filed and M.Os.1 to 16 were marked. (k) When the accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime. He would further state that on the date of occurrence, when all the four persons were staying in the house, some unknown four persons climbed on the roof and made an entry into the house and after removing the jewels, attacked all the four and decamped with the booty by taking away the jewels and cash and as such, he is innocent. (l) The trial Court, on an appraisal of the evidence available on record, concluded that the prosecution has established its case beyond reasonable doubt and convicted the accused for the offences under Sections 302 (2 counts), 307 and 309 IPC and sentenced him as stated above. Hence, this appeal. 3. Mr.V.K.Muthusamy, learned Senior Counsel appearing for the appellant/accused, while assailing the judgment impugned, would contend that the judgment has been rendered by the trial Court without any legal evidence and the witnesses, who were examined to speak about the occurrence, had turned hostile and as such, there is no substantive evidence to connect the accused with the crime and hence, he is entitled to be acquitted. 4. Arguing contra, learned Additional Public Prosecutor, in justification of the reasonings given by the trial Court, would submit that the evidence available on record would be sufficient to hold the accused guilty. 5. 4. Arguing contra, learned Additional Public Prosecutor, in justification of the reasonings given by the trial Court, would submit that the evidence available on record would be sufficient to hold the accused guilty. 5. We have given our thoughtful consideration to the respective contentions urged by learned counsel for the parties. 6. It is the case of the prosecution that the accused-husband wanted to kill his wife and two children and commit suicide due to misunderstanding in the family. In pursuance of the same, the accused attacked the children and P.W.1, the wife and gave cuts on the throat of these persons and also inflicted injury on his throat by cutting the same by means of M.O.9 knife. At the intervention of P.Ws.2 and 3, the deceased children, the accused and P.W.1 were immediately taken to the hospital, where treatment was given to them, with the result, P.W.1 and the accused were saved. In order to prove the case of the prosecution, P.Ws.1 to 3 were examined as eye-witnesses. Unfortunately, P.Ws.1 to 3 turned hostile. Thus, there is no direct evidence with reference to the occurrence. 7. The only piece of evidence available on record is the statement of the accused to P.W.7 Doctor and the statement of P.W.1, his wife when they were admitted in Gobichettipalayam Government Hospital. Ex.P-5 is the copy of accident register relating to the admission of the accused. Ex.P-7 is the copy of accident register relating to the admission of P.W.1. As per Ex.P-5, it was stated to P.W.7 Doctor by the accused that he cut himself and caused injury on his neck. Similarly, as per Ex.P-7, P.W.7 Doctor was informed by P.W.1 Tamilarasi that the injury was caused on the neck by her husband. On the basis of the evidence of these witnesses, P.W.7 Doctor gave opinion in Exs.P-11 and P-12. Though P.W.7 Doctor, while referring to Exs.P-5 and P-7, would state in chief examination that those statements have been made by the accused and P.W.1 respectively, he would categorically admit in his cross-examination that those statements were not made by P.W.1 and the accused and that when these documents, Exs.P-5 and P-7 were prepared, those details had been given by P.W.2 Iswaran. Unfortunately, P.W.2 Iswaran turned hostile. Unfortunately, P.W.2 Iswaran turned hostile. As a matter of fact, P.W.7 Doctor would admit in his cross-examination that when the accused was admitted in the hospital, though he was conscious, he was unable to talk, as he sustained injuries in his neck. As indicated above, though P.W.1 was able to talk, in spite of the injuries on her neck, the statement referred to in Ex.P-7 was not made by P.W.1, but made by P.W.2 Iswaran and as such, the evidence of P.W.7 Doctor in his cross-examination and the evidence of P.Ws.1 and 2 do not support the contents of Exs.P-5 and P-7. 8. According to the defence, some unknown persons gained entry into the house and caused injuries on the deceased children, P.W.1 and the accused, by means of weapons and took away the jewels and cash. As a matter of fact, P.W.1 also would support the defence by stating that in the mid night of 2-8-1999, four unknown persons came and attacked them and took away the jewels and cash. We need not give any importance to the case of the defence, in view of the fact that the said statement, as referred to by P.W.1 in her deposition, had not been made by P.W.1 to the Police. As a matter of fact, it is the specific denial on the part of P.W.11 Sub-Inspector of Police, when a suggestion was put that the complaint with reference to dacoity or robbery was given by the accused to the police. As such, it cannot be said that the accused has given any probable explanation with reference to the injuries sustained by the deceased children, P.W.1 and himself. 9. The question which has to be considered in the context of the peculiar facts and circumstances of the case is as to whether the evidence available on record would be sufficient to hold that the accused wanted to commit the murder of the deceased children and P.W.1 and to make an attempt to commit suicide. As noted above, the evidence available which has been referred to in Exs.P-5 and P-7, as referred to in the evidence of P.W.7 Doctor, would not conclusively prove that the accused had committed those offences, besides the fact that the said evidence has not been properly proved by adducing substantive evidence to prove the contents of Exs.P-5 and P-7. As noted above, the evidence available which has been referred to in Exs.P-5 and P-7, as referred to in the evidence of P.W.7 Doctor, would not conclusively prove that the accused had committed those offences, besides the fact that the said evidence has not been properly proved by adducing substantive evidence to prove the contents of Exs.P-5 and P-7. It is also pertinent to note in this context that P.W.1's father, who has given the complaint, giving the details of the occurrence as projected by prosecution, is no more and therefore, Ex.P-24 complaint also has not been properly proved. Under those circumstances, we are constrained to hold that the conclusion arrived at by the trial Court with reference to the conviction imposed upon the appellant is not correct and therefore, the accused is entitled to be acquitted. 10. The appeal is allowed, setting aside the conviction and sentence imposed on the appellant/accused by the trial Court. The appellant/accused is acquitted of all the charges and is directed to be set at liberty forthwith, unless he is required in connection with any other case.