IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.605 OF 2007 Joseph @ Polaya .. Appellant Vs. State rep. by Inspector of Police, P.4, Basin Bridge Police Station, Chennai (Crime No.1638 of 2005) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Chennai made in S.C.No.18 of 2007, dated 28.06.2007. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Principal Sessions Division, Chennai made in S.C.No.18 of 2007, whereby the sole accused/appellant stood charged under Section 302 IPC, tried and found guilty as per the charge of murder and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo three months S.I.
2.The short facts necessary for the disposal of this appeal could be stated as follows:
a)The accused/appellant and his son Yesaiah, since deceased in the incident were residing as tenants in the house of P.W.5. P.W.5 was also residing in a part of the same house. The accused was a retired Chennai Corporation’s Sanitary worker. The deceased was his only son through his first wife. They used to often quarrel with each other. On occasions, the deceased and his wife used to have quarrel and she used to leave him. In that, the deceased was accusing his father that he was responsible for her leaving home.
b)On the date of occurrence, that was on 22.8.2005 at about 11.30 p.m., there was quarrel, in which the deceased was uttering the very same words and asked his father to leave the house, to which the accused replied that it was his house and he need not go out. When the quarrel reached pitch, the accused took M.O.1, Pestle and after attacking the deceased with M.O.1, he also compressed his neck and caused asphyxia, by which the deceased died on the spot.
c)The accused proceeded to P.W.6 and confessed about the incident. Then, he met P.W.3, his son through the second wife and narrated the entire incident and thereafter, he left the place. P.W.10, the Sub Inspector of Police, who was on duty at P-4 Basin Bridge Police station, received Ex.P.8, the complaint from one Viswanathan on 23.8.2005 at 6.00 a.m. and registered the case in Crime No.1638 of 2005 under Section 174 Cr.P.C.. Ex.P.9, the F.I.R. was despatched to the Court. Then, he took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.5, the observation mahazar and Ex.P.6, the rough sketch. He further conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.10, the inquest report. Then, the dead body was sent to the Government Hospital for the purpose of autopsy.
d)P.W.4, the Doctor attached to the Department of Forensic Medicine, Stanely Medical College and Hospital, Chennai, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.2, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to external compression of the neck.
e)After receiving the post-mortem certificate, there arose a necessity for the police to amend the case into Section 302 IPC and accordingly, the case was amended and Ex.P.11, the express report was despatched to the Court.
f)P.W.11, the Inspector of Police, on receipt of the copy of the amended F.I.R., took up the investigation, proceeded to the spot and verified the observation mahazar and rough sketch. He recorded the statement of P.W.5 and the other witnesses. According to P.W.5, on 22.8.2005 at about 3.00 a.m., he found the accused moving from the place with pestle in his cycle. Then, P.W.5 returned and came to know that the deceased died and he went inside of the house and found the deceased with all injuries.
g)Pending investigation, P.W.11 arrested the accused on 24.08.2005. The accused came forward to give confessional statement voluntarily and the same was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.12. Pursuant to the same, the accused produced M.O.1, pestle, which was recovered under a cover of mahazar. The accused was produced before P.W.9, the Doctor for the injuries sustained by him and a blunt injury was found on his stomach. The accused was treated as out patient and Ex.P.7 is the O.P. Chit issued to the accused. Then the accused was sent for judicial remand. P.Ws.2 and 3 were produced before the XXII Metropolitan Magistrate and the statements under section 164 Cr.P.C. were recorded. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and also relied on 13 exhibits and 1 M.O. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused denied them as false. No defence witness was examined. The trial court, after hearing the arguments on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt. Hence this appeal has arisen at the instance of the appellant.
4.The learned counsel appearing for the appellant in short would submit that in the instant case, the prosecution had no direct evidence to offer; that the witnesses, who have been examined on the side of the prosecution to speak about the motive attributed to the accused, namely P.Ws.1,2 and 6, have turned hostile; that the prosecution would claim that the accused met P.W.8 and confessed about the incident, but he has turned hostile; that P.W.2 is the second wife of the accused and she has no grudge, but she has also turned hostile and that all witnesses were planted.
5.Added further the learned counsel that in the instant case, the prosecution had no direct evidence and hence it relied on certain circumstances; that according to P.W.5, it was he who saw the accused moving from the house at about 3.00 a.m.; that the dead body was found by the others only at 6.00 a.m.; that if to be so, within three hours, namely from 3.00 a.m. to 6.00 a.m., the occurrence could have been happened; that had it been true, when P.W.5 saw the accused leaving the place immediately after the occurrence was over, he would have immediately brought the same to the notice of others, but not done so and it casts a doubt on his conduct and hence his evidence should not be relied upon. The learned counsel would further submit that it is true, the prosecution was able to prove through the post-mortem Doctor that the deceased died out of asphyxia due to external compression of the neck, but there is no evidence to connect the accused with the crime and under these circumstances, the prosecution has miserably failed to prove its case and hence the lower court should have rejected its case outright.
6.The learned counsel in his second line of argument would submit that there was often quarrel between the father and the son, namely the accused and the deceased; that even at the time of occurrence, there was quarrel between them; that the deceased asked his father to leave the house; that it is quite natural for the father to get provoked and due to provocation, he has acted so and under these circumstances, the act of the accused was neither intentional nor premeditated and hence it has got to be considered by this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that the deceased Yesaiah, the son of the accused was actually done to death in an incident that has taken place inside the house of the accused, where the deceased was also living with him. Following the inquest made by P.W.10, the dead body was subjected to post-mortem by P.W.4, the Doctor, who has given his categorical opinion that the deceased would appear to have died of asphyxia due to external compression of the neck. Further, it is to be pointed out that the cause of death as put forth by the prosecution was never disputed by the accused. Under these circumstances, it has got to be factually recorded that the deceased died out of asphyxia due to external compression of the neck.
9.In the instant case, the prosecution had no direct evidence to offer it is true. But, in the considered opinion of the court, the prosecution has placed and proved necessary circumstances pointing to the guilt of the accused. At the outset, it has to be pointed out that the occurrence has taken place at 11.30 p.m. on 22.8.2005. On the date of occurrence, according to the prosecution, the accused was living with his son Yesaiah in the very same house, which belonged to P.W.5. P.W.5 has come forward to give evidence that he saw the accused leaving the place with M.O.1 and he found the dead body on the next day morning. The occurrence has taken place inside the house in the night hours. When the accused and the deceased were the only persons staying in the house, it is for the accused to explain as to how the death has taken place. It is not a natural death, but the cause of death was clearly brought before the court through the post-mortem Doctor. Under these circumstances, in a given case like this when a particular fact is actually within the special knowledge of the accused, it is for him to speak about it. In the absence of the same or giving false explanation or suppression of any fact, the court can take an inference that the accused was responsible for the same and apart from that, it can be taken as a link even it is found to be missing and the prosecution has brought forth the same before the court.
10.In the instant case, two witnesses were examined, to whom the accused went over and confessed about the crime and they are P.Ws.3 and 6, out of whom P.W.6 has turned hostile. But, P.W.3 has clearly spoken the fact that the accused came over there and narrated the incident and also asked money for the other expenses. It is pertinent to point out that P.W.3 is also the son of the accused through his second wife. So far as this witness was concerned, no circumstance or reason could be attributed for coming before the court of law to give such a evidence against his father. Apart from that, the statement of the said witness was also recorded by the Metropolitan Magistrate concerned under Section 164 Cr.P.C. and that the statement was not retracted by the witness. Before accepting the extra judicial confession, the court has to apply two tests. The first test is under what circumstance such extra judicial confession was made and secondly, whether the evidence of the person to whom such extra judicial confession was made inspired the confidence of the court. In the instant case, the father has made confession to his son, P.W.3 and no circumstance is noticed to disbelieve his evidence. Thus, the extra judicial confession projected through P.W.3 has got to be relied upon.
11.The added circumstance is the opinion of the post-mortem Doctor, which stood in corroboration with the material particulars. Apart from that, on arrest, the accused came forward to give confessional statement voluntarily, pursuant to which, M.O.1, weapon of crime was also produced. The recovery of M.O.1 following the confessional statement given by the accused would be pointing to the nexus of the accused with the crime. Hence the prosecution had sufficient circumstance to place and prove. In the considered opinion of the court, the prosecution has done so. The court has to accept the case of the prosecution that it was the accused who has caused the death of his son by compression using M.O.1 and due to asphyxia, the deceased died. Hence the contentions put forth by the learned counsel for the appellant in this regard have got to be rejected.
12.Insofar as the second line of argument, this court has to necessarily agree with the learned counsel for the appellant. It is an admitted position that the father and the son, namely the accused and the deceased, used to quarrel often. Apart from that, the wife of the deceased used to have quarrel with him and she used to leave him and that, the deceased was accusing his father that it was he who was responsible for the same and that was the main reason for the quarrel between the father and the son. As usual, on the date of occurrence at about 11.30 p.m., quarrel arose between the accused and the deceased. At that time, when the quarrel reached pitch, the deceased asked his father to go out of the house, but the father replied that he need not go out of his house. In that quarrel, being provoked, the father took M.O.1, the weapon of crime and not only attacked him, but also compressed his neck, thereby caused asphyxia and the deceased died. Under these circumstances, it would be quite clear that following the quarrel, the accused got provoked and has acted so. Hence the act of the accused cannot be termed as murder, but it would be one culpable homicide not amounting to murder. The act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice.
13.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead, he is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The period of sentence already undergone by him is ordered to be given set off. The fine amount and default sentence imposed by the trial court under Section 302 IPC will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed.
(M.C., J.) (S.R., J.)
25.11.2008
Index : Yes
Internet : Yes
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To
1.The Principal Sessions Judge,
Chennai.
2.The Inspector of Police,
P.4, Basin Bridge Police Station,
Chennai.
3.The Additional Public Prosecutor,
High Court,
Madras.
M.CHOCKALINGAM, J.
AND
S.RAJESWARAN, J.
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CRL.A.NO.605 OF 2007
25.11.2008