BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/10/2008 CORAM THE HONOURABLE MR. JUSTICE R. REGUPATHI and THE HONOURABLE MR. JUSTICE R. SUBBIAH Criminal Appeal No. 1137 OF 2001 John Roase .. Appellant vs. State by Inspector of Police, Pudukadai Police Station, in Crime No. 698/1999 .. Respondent Criminal Appeal under Section 374 of Cr.P.C., against the order of conviction and sentence dated 16.5.2001 passed by the learned Additional Sessions Judge, Kanyakumari District at Nagercoil, in S.C.No.102/2000. !For appellant ... Mr.K. Jeganathan ^For respondent... Mr.N. Senthur Pandian, Addl.Public Prosecutor :JUDGEMENT
(Judgement of the Court was delivered by R. REGUPATHI, J)
The appellant/accused is the husband of the deceased and out of the
wedlock, he begot through her four children. He was a fisherman and was also
selling fish with PW.4 Anil and both of them became friends. The case of the
prosecution is that on 22.8.1999 at 10.00 PM, the accused, on seeing the
deceased in a compromising position with PW4, with an intention to kill her,
beat her with an umbrella on the forehead, threw grinding stone on the breast
and flank and caused injuries on the private part by forcibly poking with the
sharp edge of the umbrella and thereby, caused the death of the deceased.
Charged in that regard, the accused was tried by the learned Additional Sessions
Judge, Kanyakumari District at Nagercoil in Sessions Case No. 102 of 2000.
The prosecution in its endeavour to establish its case against the
accused, examined PWs. 1 to 15, marked Exs. P1 to P17 and produced M.Os. 1 to
4. Neither oral nor documentary evidence was let in by the defence. On
conclusion of the trial, by order dated 16.5.2001 the accused was convicted for
an offence under Section 302 IPC and sentenced to undergo life imprisonment and
to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for a
further period of two years. Aggrieved against the order of conviction and
sentence passed by the trial court, the present criminal appeal has been
preferred by the appellant.
2. The prosecution case, as spoken to by its witnesses, is briefly
narrated hereunder:
(a) PW1 is the mother of the deceased. She has deposed that the deceased
married the appellant after being abandoned by her first husband and through the
appellant, she gave birth to four children, two male and two female. Both the
appellant and the deceased were living together under one roof near Pudukadai.
On 23.8.1999, one Kumar informed PW1 that her daughter was lying dead, whereupon
PW1 reached the scene of occurrence viz., the residence of the appellant, and
found the deceased dead and noticed injuries on the forehead, breast and on the
private part. The appellant was found missing and a complaint under Ex.P1 was
given to the Police.
(b) PW2 is a neighbour of the deceased and he deposed that on 23.8.1999 on
being informed by the villagers that the deceased was lying dead at her
residence, he went there and found the deceased dead with severe injuries. He
informed the same to PW1, the mother of the deceased and on her reaching the
occurrence place, he accompanied her to the Police Station and also attested
Ex.P1.
(c). PW4 has stated that on the date of occurrence, in the night, he was
staying with the deceased and when the accused came there while himself and the
deceased were lying together, he ran away from there.
(d) PW5 is also a neighbour, who went to the residence of the deceased on
hearing the cry of the child and found the deceased lying dead. His evidence is
also on the same line as that of PW2. PW6 was present at the time when the
Inspector of Police prepared observation mahazaar, Ex.P4 and he attested the
same.
(e) PWs. 8 and 9 deposed that on 02.10.1999 at about 10.00 AM they met the
accused at Marthandam and when they questioned him about his absence after the
death of his wife, he stated that on 22.8.1999 at 10.00 PM, he saw the deceased
with PW4 in a compromising position inside his residence and on seeing him, PW4
ran away from there and enraged at the conduct of the deceased, he attacked her
with umbrella and grinding stone and thereafter escaped from the scene of
occurrence along with his son.
(f) PW12, the Sub Inspector of Police, Pudukadai, on 23.8.1999 at 4.00 PM,
received the complaint from PW1, registered a case in Cr.No.698/99 under Section
174 Cr.P.C. as suspicious death and sent a copy of the FIR Ex.P13 to the higher
authorities and the Judicial Magistrate concerned.
(g) PW13, the Inspector of Police, on 23.8.1999, on receipt of the copy of
the FIR, took up investigation, reached the scene of occurrence at 4.45 PM and
prepared observation mahazaar Ex.P4 and rough sketch Ex.P15. He conducted
inquest over the dead body of the deceased from 5.00 PM to 6.30 PM in the
presence of Panchayatars. The inquest report is marked as Ex.P16. He examined
the witnesses who were present at the time of inquest and recorded their
statement. He sent the dead body through PW14 Constable to the Hospital for
conducting post-mortem.
(h) PW3 is the Doctor, who, on receipt of requisition Ex.P2 from the
Investigating Officer, conducted post-mortem over the dead body of the deceased
and Ex.P3 is the post-mortem report, wherein, she has noted down the following:-
External Injuries: 1) Incised wound 1cm x 1cm x 1cm seen on the middle of the
forehead.
2) Abrasion 5 cm x . cm below the Right breast.
3) Urethral tear present and Right side (nc) haemotoma extending from the Labia
Major to the perineum.
On exploration of Injury No.1 Opening of the skull, haemotoma seen and subdural
haemotoma present on both of temporal region of the skull.
Brain 1200gm. partially liquified.
On exploration of injury No.2 and opening of the Thorax. Haemotoma seen beneath
the injury.
Fracture of 2 to 10 ribs at the medial end. About 300 ml of blood present in the
thoracic cavity.
The Doctor opined that the deceased would appear to have died of shock and
haemorrhage due to multiple injuries.
(i) On receipt of opinion from the Post-mortem Doctor on 9.10.1999 at 7.00
PM, PW13 altered the case for an offence under Section 302 IPC and sent express
FIR to the Court as well as higher authorities in the Department. On the same
day, he examined Pws.8 and 9 to whom the accused made extra judicial confession.
On 10.10.1999 at 6.00 AM he arrested the accused in the presence of PW7 and one
Kumar. The accused voluntarily gave a statement and the admissible portion
thereof is marked as Ex.P5, wherein he has stated that he would produce the
weapon of offence and in pursuance of which, on production, the Investigating
Officer recovered the grinding stone MO1 and umbrella MO2 in the presence of
witnesses under Ex.P6 mahazaar. He recovered MOs. 3 and 4 Blouse and Petticoat
of the deceased after post-mortem and entrusted the task of further
investigation to PW15. On 30.11.1999 PW15 examined the post-mortem Doctor and
recorded her statement. On the same day, he examined PW4 Anil. The Investigating
Officer sent the material objects under a requisition to the Court for chemical
analysis. PW11, on receipt of the same, sent the same for chemical examination
and received the Chemical Analysis and Serologist’s reports under Exs.P11 to
P13. After examination of the witnesses and collecting all relevant materials,
the Investigating Officer filed final report before Court for an offence
punishable under Section 302 IPC against the accused.
(j) When the accused was questioned under Section 313 Cr.P.C., he denied
his complicity in the commission of the offence and pleaded not guilty. On the
basis of the materials placed and considering the submissions made by both
sides, the learned trial Judge convicted and sentenced the accused as stated
supra; hence the present appeal.
3. The learned counsel for the appellant at the foremost submits that the
alleged extra judicial confession was made to Pws. 8 and 9 on 2.10.1999 but,
they were examined by the Investigating Officer only on 9.10.1999 till which
time such extra judicial confession was not revealed to anyone. Further, their
statements were received by the Court after a long period of one year, i.e.,
only on 7.1.2000. Under such circumstances, their evidence should not be
accepted as true.
Next, it is contended that the accused was arrested on 10.10.1999 and in
pursuance of the statement given by him, weapons of offence were recovered. The
name of PW4 was informed by the accused to PW13 the Investigating Officer and no
immediate steps were taken by him for examination of the said witness PW.4.
Only during the further investigation done by PW.15, on 30.11.1999, PW4 came to
be examined; under such circumstances, his evidence could not be relied on.
The evidence of PW1 and other witnesses would go to show that the death
of the deceased at her residence was culpable homicide not amounting to murder
and there is no direct evidence to implicate the accused and therefore, it is
contended that it is a fit case for acquittal.
In the alternative, even if the evidence of Pws-4, 8 and 9 were to rely
upon, the same would not make out a case under Section 302 IPC. It is the
categorical evidence of PW4 that on the date of occurrence he was present inside
the house of the deceased, lying along with her and at which time the accused
entered into the residence and he ran away. It is the extra judicial confession
of the accused before PWs. 8 and 9 that he got enraged on seeing PW4 in a
compromising position with his wife and only thereafter assaulted the deceased
with an umbrella and grinding stone. By submitting that their evidence only
substantiates that the accused, on seeing PW4 in a compromising position with
his wife, lost his control and in a grave and sudden provocation, committed the
offence and therefore, there was no prior intention on the part of accused to
commit murder; learned counsel pleads that a lesser punishment may be imposed.
4. Per contra, the learned Additional Public Prosecutor submits that it is
true that the occurrence took place soon after the accused seeing the deceased
in a compromising position with PW4, but by looking at the nature of injuries
caused on the deceased, by throwing a grinding stone on the breast and
assaulting her on the forehead and private part with umbrella, it could be
inferred that the accused, knowing fully well that such injuries would result in
her death, inflicted those fatal injuries; in such circumstances, rightly the
trial court held against the accused and the reasonings and findings of the
trial judge are well founded.
5. We have perused the materials available on record and carefully
considered the rival submissions made on both sides.
6. The occurrence had taken place in the matrimonial home of the deceased,
where the accused and the deceased were living together. Though the counsel for
the appellant seriously contended that there was a delay in examination of Pws.
8 and 9 as well as PW4, on a perusal of their evidence, we find that their
evidence is quite natural. Further, when the accused was questioned by Pws. 8
and 9 with regard to his absence subsequent to the death of his wife, the
accused confessed to them that he committed the murder of his wife after seeing
her in a compromising position with PW4. Soon after arrest, the appellant had
given a statement to the Investigating Officer to the same effect viz., PW4 was
lying with his wife in a compromising position and enraged at that, he attacked
the deceased. Fortunately, PW4 himself has been examined and his evidence
confirms the fact of his illicit intimacy with the deceased. Therefore, we have
no hesitation in relying upon the evidence of PWs. 4, 8 and 9. If the evidence
of those witnesses are believed, we are of the considered view that the act of
the appellant would not fall under Section 302 IPC. Admittedly, there was no
intention on the part of the accused before the occurrence. When he entered
into his residence at 10.00 PM, he saw his wife in a compromising position with
P.W.4. On seeing the accused, PW4 ran away from there after pushing away the
accused. In such circumstances, the accused, under the grip of anger, lost his
self-control, took out the weapons of offence, namely, the grinding stone as
well as umbrella, which were found inside the residence, and assaulted the
deceased, resulting in her death.
7. In view of the facts and circumstances of the case, while holding that
the offence under Section 302 IPC may not get attracted, we are of the
considered view that the accused committed culpable homicide not amounting to
murder and the act done by him will fall under exception 1 to Section 300 IPC.
The culpable homicide is not murder if the offender whilst deprived of the power
of self control by grone and sudden provocation causes the death of the person
who gave the provocation. The judgement of the trial Court is dated 16.5.2001
and the appellant was remanded to Judicial custody after arrest by the police.
The sentence was suspended on 21.3.2002. The accused is father of four children.
Under such circumstances, we are of the considered view that the sentence of
R.I. for one year will be sufficient for the offence under Section 304 IPC Part-
II. Accordingly the sentence of life imprisonment imposed by the trial Judge on
the appellant/accused for the offence under Section 302 IPC., is set aside and
the appellant is convicted u/s.304 Part-II I.P.C. and sentenced to undergo R.I.
for one year. If the appellant/accused had already served the period of
punishment i.e. one year R.I., the bail bond executed by him shall stand
cancelled, otherwise, the learned trial judge shall take steps to secure his
presence and commit him to prison to undergo the remaining period of sentence.
8.The appeal is allowed with the above modification.
kr/er.
To
1. The Additional District and Sessions Judge,
Kanyakumari Distric at Nagercoil.
2. The Additional District & Sessions Judge, through
the Principal District & Sessions Judge, Kanyakumari
District at Nagercoil.
3. The Judicial Magistrate No.2, Kuzhithurai, Kanyakumari
District at Nagercoil.
4. The Judicial Magistrate No.2, through the Chief Judicial
Magistrate, Kanyakumari District at Nagercoil.
5. The District Collector,Kanyakumari District
at Nagercoil.
6. The Superintendent, Control Prison, Palayamkottai,
Tirunelveli District.
7. The Public Prosecutor, Madurai Bench of Madras High
Court, Madurai.
8. The Inspector of Police, Pudukadai Police Station,
Kanyakumari District.