{"id":70539,"date":"2008-10-23T00:00:00","date_gmt":"2008-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/john-roase-vs-state-by-inspector-of-police-on-23-october-2008"},"modified":"2018-08-05T23:51:03","modified_gmt":"2018-08-05T18:21:03","slug":"john-roase-vs-state-by-inspector-of-police-on-23-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/john-roase-vs-state-by-inspector-of-police-on-23-october-2008","title":{"rendered":"John Roase vs State By Inspector Of Police on 23 October, 2008"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">John Roase vs State By Inspector Of Police on 23 October, 2008<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 23\/10\/2008\n\nCORAM\nTHE HONOURABLE MR. JUSTICE R. REGUPATHI\nand\nTHE HONOURABLE MR. JUSTICE R. SUBBIAH\n\nCriminal Appeal No. 1137 OF 2001\n\nJohn Roase                     ..    Appellant\n\nvs.\n\nState by Inspector of Police,\nPudukadai Police Station,\nin Crime No. 698\/1999          \t..   Respondent\n\n\n\tCriminal Appeal under Section 374 of Cr.P.C., against the order of\nconviction and sentence dated 16.5.2001 passed by the learned Additional\nSessions Judge, Kanyakumari District at Nagercoil, in S.C.No.102\/2000.\n\n!For appellant ... Mr.K. Jeganathan\n^For respondent... Mr.N. Senthur Pandian,          \t\n\t\t   Addl.Public Prosecutor\n:JUDGEMENT\n<\/pre>\n<p>(Judgement of the Court was delivered by R. REGUPATHI, J)<br \/>\n\tThe appellant\/accused is the husband of the deceased and out of the<br \/>\nwedlock, he begot through her four children.  He was a fisherman and was also<br \/>\nselling fish with PW.4 Anil and both of them became friends. The case of the<br \/>\nprosecution is that on 22.8.1999 at 10.00 PM, the accused, on seeing the<br \/>\ndeceased in a compromising position with PW4, with an intention to kill her,<br \/>\nbeat her with an umbrella on the forehead, threw grinding stone on the breast<br \/>\nand flank and caused injuries on the private part by forcibly poking with the<br \/>\nsharp edge of the umbrella and  thereby, caused the death of the deceased.<br \/>\nCharged in that regard, the accused was tried by the learned Additional Sessions<br \/>\nJudge, Kanyakumari District at Nagercoil in Sessions Case No. 102 of 2000.<br \/>\n\tThe prosecution in its endeavour to establish its  case against the<br \/>\naccused,  examined PWs. 1 to 15, marked Exs. P1 to P17 and produced M.Os. 1 to\n<\/p>\n<p>4. Neither oral nor documentary evidence was let in by the defence. On<br \/>\nconclusion of the trial, by order dated 16.5.2001 the accused was convicted for<br \/>\nan offence under Section 302 IPC and sentenced to undergo life imprisonment and<br \/>\nto pay a fine of Rs.1000\/-, in default, to undergo rigorous imprisonment for a<br \/>\nfurther period of two years.  Aggrieved against the order of conviction and<br \/>\nsentence passed by the trial court, the present criminal appeal has been<br \/>\npreferred by the appellant.\n<\/p>\n<p>\t2. The prosecution case, as spoken to by its witnesses, is briefly<br \/>\nnarrated hereunder:\n<\/p>\n<p>\t(a) PW1 is the mother of the deceased. She has deposed that the deceased<br \/>\nmarried the appellant after being abandoned by her first husband and through the<br \/>\nappellant, she gave birth to four children, two male and two female. Both the<br \/>\nappellant and the deceased were living together under one roof near Pudukadai.<br \/>\nOn 23.8.1999, one Kumar informed PW1 that her daughter was lying dead, whereupon<br \/>\nPW1 reached the scene of occurrence viz., the residence of the appellant, and<br \/>\nfound the deceased dead and noticed injuries on the forehead, breast and on the<br \/>\nprivate part.  The appellant was found missing and a complaint under Ex.P1 was<br \/>\ngiven to the Police.\n<\/p>\n<p>\t(b) PW2 is a neighbour of the deceased and he deposed that on 23.8.1999 on<br \/>\nbeing informed by the villagers that the deceased was lying dead at her<br \/>\nresidence, he went there and found the deceased dead with severe injuries.  He<br \/>\ninformed the same to PW1, the mother of the deceased and on her reaching the<br \/>\noccurrence place,  he accompanied her to the Police Station and also attested<br \/>\nEx.P1.\n<\/p>\n<p>\t(c). PW4 has stated that on the date of occurrence, in the night, he was<br \/>\nstaying with the deceased and when the accused came there while himself and the<br \/>\ndeceased were lying together, he ran away from there.\n<\/p>\n<p>\t(d) PW5 is also a neighbour, who went to the residence of the deceased on<br \/>\nhearing the cry of the child and found the deceased lying dead. His evidence is<br \/>\nalso on the same line as that of PW2.  PW6 was present at the time when the<br \/>\nInspector of Police prepared observation mahazaar, Ex.P4 and he attested the<br \/>\nsame.\n<\/p>\n<p>\t(e) PWs. 8 and 9 deposed that on 02.10.1999 at about 10.00 AM they met the<br \/>\naccused at Marthandam and when they questioned him about his absence after the<br \/>\ndeath of his wife, he stated that on 22.8.1999 at 10.00 PM, he saw the deceased<br \/>\nwith PW4 in a compromising position inside his residence and on seeing him, PW4<br \/>\nran away from there and enraged at the conduct of the deceased, he attacked her<br \/>\nwith umbrella and grinding stone and thereafter escaped from the scene of<br \/>\noccurrence along with his son.\n<\/p>\n<p> \t(f) PW12, the Sub Inspector of Police, Pudukadai, on 23.8.1999 at 4.00 PM,<br \/>\nreceived the complaint from PW1, registered a case in Cr.No.698\/99 under Section<br \/>\n174 Cr.P.C. as suspicious death and sent a copy of the FIR Ex.P13 to the higher<br \/>\nauthorities and the Judicial Magistrate concerned.\n<\/p>\n<p>\t(g) PW13, the Inspector of Police, on 23.8.1999, on receipt of the copy of<br \/>\nthe FIR, took up investigation, reached the scene of occurrence at 4.45 PM and<br \/>\nprepared observation mahazaar Ex.P4 and rough sketch Ex.P15. He conducted<br \/>\ninquest over the dead body of the deceased from 5.00 PM to 6.30 PM in the<br \/>\npresence of Panchayatars.  The inquest report is marked as Ex.P16.  He examined<br \/>\nthe witnesses who were present at the time of inquest and recorded their<br \/>\nstatement. He sent the dead body through PW14 Constable to the Hospital for<br \/>\nconducting post-mortem.\n<\/p>\n<p>\t(h) PW3 is the Doctor, who, on receipt of requisition Ex.P2 from the<br \/>\nInvestigating Officer, conducted post-mortem over the dead body of the deceased<br \/>\nand Ex.P3 is the post-mortem report, wherein, she has noted down the following:-<br \/>\nExternal Injuries: 1) Incised wound 1cm x 1cm x 1cm seen on the middle of the<br \/>\nforehead.\n<\/p>\n<p>2) Abrasion 5 cm x . cm below the Right breast.\n<\/p>\n<p>3) Urethral tear present and Right side (nc) haemotoma extending from the Labia<br \/>\nMajor to the perineum.\n<\/p>\n<p>On exploration of Injury No.1 Opening of the skull, haemotoma seen and subdural<br \/>\nhaemotoma present on both of temporal region of the skull.<br \/>\nBrain 1200gm. partially liquified.\n<\/p>\n<p>On exploration of injury No.2 and opening of the Thorax.  Haemotoma seen beneath<br \/>\nthe injury.\n<\/p>\n<p>Fracture of 2 to 10 ribs at the medial end. About 300 ml of blood present in the<br \/>\nthoracic cavity.\n<\/p>\n<p>The Doctor opined that the deceased would appear to have died of shock and<br \/>\nhaemorrhage due to multiple injuries.\n<\/p>\n<p>\t(i) On receipt of opinion from the Post-mortem Doctor on 9.10.1999 at 7.00<br \/>\nPM, PW13 altered the case for an offence under Section 302 IPC and sent express<br \/>\nFIR to the Court as well as higher authorities in the Department.  On the same<br \/>\nday, he examined Pws.8 and 9 to whom the accused made extra judicial confession.<br \/>\nOn 10.10.1999 at 6.00 AM he arrested the accused in the presence of PW7 and one<br \/>\nKumar.  The accused voluntarily gave a statement and the admissible portion<br \/>\nthereof is marked as Ex.P5, wherein he has stated that he would produce the<br \/>\nweapon of offence and in pursuance of which, on production, the Investigating<br \/>\nOfficer recovered the grinding stone MO1 and umbrella MO2 in the presence of<br \/>\nwitnesses under Ex.P6 mahazaar.  He recovered MOs. 3 and 4 Blouse and Petticoat<br \/>\nof the deceased after post-mortem and entrusted the task of further<br \/>\ninvestigation to PW15. On 30.11.1999 PW15 examined the post-mortem Doctor and<br \/>\nrecorded her statement. On the same day, he examined PW4 Anil. The Investigating<br \/>\nOfficer sent the material objects under a requisition to the Court for chemical<br \/>\nanalysis. PW11, on receipt of the same, sent the same for chemical examination<br \/>\nand received the Chemical Analysis and Serologist&#8217;s reports under Exs.P11 to<br \/>\nP13. After examination of the witnesses and collecting all  relevant materials,<br \/>\nthe Investigating Officer filed final report before Court for an offence<br \/>\npunishable under Section 302 IPC against the accused.\n<\/p>\n<p>\t(j) When the accused was questioned under Section 313 Cr.P.C., he denied<br \/>\nhis complicity in the commission of the offence and pleaded not guilty. On the<br \/>\nbasis of the materials placed and considering the submissions made by both<br \/>\nsides, the learned trial Judge convicted and sentenced the accused as stated<br \/>\nsupra; hence the present appeal.\n<\/p>\n<p>\t3. The learned counsel for the appellant at the foremost submits that the<br \/>\nalleged extra judicial confession was made to Pws. 8 and 9 on 2.10.1999 but,<br \/>\nthey were examined by the Investigating Officer only on 9.10.1999 till which<br \/>\ntime such extra judicial confession was not revealed to anyone.  Further, their<br \/>\nstatements were received by the Court after a long period of one year, i.e.,<br \/>\nonly on 7.1.2000.  Under such circumstances, their evidence should not be<br \/>\naccepted as true.\n<\/p>\n<p>\t Next, it is contended that the accused was arrested on 10.10.1999 and in<br \/>\npursuance of the statement given by him, weapons of offence were recovered. The<br \/>\nname of PW4 was informed by the accused to PW13 the Investigating Officer and no<br \/>\nimmediate steps were taken by him for examination of the said witness PW.4.<br \/>\nOnly during the further investigation done by PW.15, on 30.11.1999, PW4 came to<br \/>\nbe examined; under such circumstances, his evidence could not be relied on.\n<\/p>\n<p>\t The evidence of PW1 and other witnesses would go to show that the death<br \/>\nof the deceased at her residence was culpable homicide not amounting to murder<br \/>\nand there is no direct evidence to implicate the accused and therefore, it is<br \/>\ncontended that it is a fit case for acquittal.\n<\/p>\n<p>\t In the alternative, even if the evidence of Pws-4, 8 and 9 were to rely<br \/>\nupon, the same would not make out a case under Section 302 IPC. It is the<br \/>\ncategorical evidence of PW4 that on the date of occurrence he was present inside<br \/>\nthe house of the deceased, lying along with her and at which time the accused<br \/>\nentered into the residence and he ran away.  It is the extra judicial confession<br \/>\nof the accused before PWs. 8 and 9 that he got enraged on seeing PW4 in a<br \/>\ncompromising position with his wife and only thereafter assaulted the deceased<br \/>\nwith an umbrella and grinding stone.  By submitting that their evidence only<br \/>\nsubstantiates that the accused, on seeing PW4 in a compromising position with<br \/>\nhis wife, lost his control and in a grave and sudden provocation, committed the<br \/>\noffence and therefore, there was no prior intention on the part of accused to<br \/>\ncommit murder; learned counsel pleads that a lesser punishment may be imposed.\n<\/p>\n<p>\t4. Per contra, the learned Additional Public Prosecutor submits that it is<br \/>\ntrue that the occurrence took place soon after the accused seeing the deceased<br \/>\nin a compromising position with PW4, but by looking at the nature of injuries<br \/>\ncaused on the deceased, by throwing a grinding stone on the breast and<br \/>\nassaulting her on the forehead and private part with umbrella, it could be<br \/>\ninferred that the accused, knowing fully well that such injuries would result in<br \/>\nher death, inflicted those fatal injuries; in such circumstances, rightly the<br \/>\ntrial court held against the accused and the reasonings and findings of the<br \/>\ntrial judge are well founded.\n<\/p>\n<p>\t5. We have perused the materials available on record and carefully<br \/>\nconsidered the rival submissions made on both sides.\n<\/p>\n<p>\t6. The occurrence had taken place in the matrimonial home of the deceased,<br \/>\nwhere the accused and the deceased were living together.  Though the counsel for<br \/>\nthe appellant seriously contended that there was a delay in examination of Pws.<br \/>\n8 and 9 as well as PW4, on a perusal of their evidence, we find that their<br \/>\nevidence is quite natural. Further, when the accused was questioned by Pws. 8<br \/>\nand 9 with regard to his absence subsequent to the death of his  wife, the<br \/>\naccused confessed to them that he committed the murder of his wife after seeing<br \/>\nher in a compromising position with PW4. Soon after arrest, the appellant had<br \/>\ngiven a statement to the Investigating Officer to the same effect viz., PW4 was<br \/>\nlying with his wife in a compromising position and enraged at that, he attacked<br \/>\nthe deceased. Fortunately, PW4 himself has been examined and his evidence<br \/>\nconfirms the fact of his illicit intimacy with the deceased.  Therefore, we have<br \/>\nno hesitation in relying upon the evidence of PWs. 4, 8 and 9. If the evidence<br \/>\nof  those witnesses are believed, we are of the considered view that the act of<br \/>\nthe appellant would not fall under Section 302 IPC.  Admittedly, there was no<br \/>\nintention on the part of the accused before the occurrence.  When he entered<br \/>\ninto his residence at 10.00 PM, he saw his wife in a compromising position with<br \/>\nP.W.4.  On seeing the accused, PW4 ran away from there after pushing away the<br \/>\naccused. In such circumstances, the accused, under the grip of anger, lost his<br \/>\nself-control, took out the weapons of offence,  namely, the grinding stone as<br \/>\nwell as umbrella, which were found inside the residence, and assaulted the<br \/>\ndeceased, resulting in her death.\n<\/p>\n<p>\t7. In view of the facts and circumstances of the case, while holding that<br \/>\nthe offence under Section 302 IPC may not get attracted, we are of the<br \/>\nconsidered view that the accused committed culpable homicide not amounting to<br \/>\nmurder and the act done by him will fall under exception 1 to Section 300 IPC.<br \/>\nThe culpable homicide is not murder if the offender whilst deprived of the power<br \/>\nof self control by grone and sudden provocation causes the death of the person<br \/>\nwho gave the provocation. The judgement of the trial Court is dated 16.5.2001<br \/>\nand the appellant was remanded to Judicial custody after arrest by the police.<br \/>\nThe sentence was suspended on 21.3.2002. The accused is father of four children.<br \/>\nUnder such circumstances, we are of the considered view that the sentence of<br \/>\nR.I. for one year will be sufficient for the offence under Section 304 IPC Part-<br \/>\nII. Accordingly the sentence of life imprisonment imposed by the trial Judge on<br \/>\nthe appellant\/accused for the offence under Section 302 IPC., is set aside and<br \/>\nthe appellant is convicted u\/s.304 Part-II I.P.C. and sentenced to undergo R.I.<br \/>\nfor one year.  If the appellant\/accused had already served the period of<br \/>\npunishment i.e. one year R.I., the bail bond executed by him shall stand<br \/>\ncancelled, otherwise, the learned trial judge shall take steps to secure his<br \/>\npresence and commit him to prison to undergo the remaining period of sentence.\n<\/p>\n<p>\t8.The appeal is allowed with the above modification.\n<\/p>\n<p>kr\/er.\n<\/p>\n<p>To<\/p>\n<p>1. The Additional District and Sessions Judge,<br \/>\n   Kanyakumari Distric at Nagercoil.\n<\/p>\n<p>2. The Additional District &amp; Sessions Judge, through<br \/>\n   the Principal District &amp; Sessions Judge, Kanyakumari<br \/>\n   District at Nagercoil.\n<\/p>\n<p>3. The Judicial Magistrate No.2, Kuzhithurai, Kanyakumari<br \/>\n   District at Nagercoil.\n<\/p>\n<p>4. The Judicial Magistrate No.2, through the Chief Judicial<br \/>\n   Magistrate, Kanyakumari District at Nagercoil.\n<\/p>\n<p>5. The District Collector,Kanyakumari District<br \/>\n   at Nagercoil.\n<\/p>\n<p>6. The Superintendent, Control Prison, Palayamkottai,<br \/>\n   Tirunelveli District.\n<\/p>\n<p>7. The Public Prosecutor, Madurai Bench of Madras High<br \/>\n   Court, Madurai.\n<\/p>\n<p>8. The Inspector of Police, Pudukadai Police Station,<br \/>\n   Kanyakumari District.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court John Roase vs State By Inspector Of Police on 23 October, 2008 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, [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-70539","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>John Roase vs State By Inspector Of Police on 23 October, 2008 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/john-roase-vs-state-by-inspector-of-police-on-23-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"John Roase vs State By Inspector Of Police on 23 October, 2008 - Free Judgements of Supreme Court &amp; 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