John Roase vs State by Inspector of Police

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

p.m., 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 u/s 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.

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 a.m. 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 p.m., 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 p.m.. received the complaint from PW1, registered a case in Cr. No.

698/99 u/s 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 p.m. and prepared observation mahazaar Ex.P4 and rough sketch Ex.P15. He conducted inquest over the dead body of the deceased from

5.00 p.m. to 6.30 p.m. 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 postmortem report, wherein, she has noted down the following: External Injuries: 1) Incised wound 1 cm x 1 cm x 1 cm

seen on the middle of the forehead.

2) Abrasion 5 cm x 1/2 cm below the right breast.

3) Urethral tear present and right side (nc) haemotoma extending from the Labia Majora 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 Postmortem Doctor on 9.10.1999 at 7.00 p.m., PW13 altered the case for an offence u/s 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 a.m. 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 u/s 302, IPC

against the accused.

(j) When the accused was questioned u/s 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.

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 PW15. 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 de-ceased 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 u/s 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.

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.

We have perused the materials available on record and carefully considered the rival submissions made on both sides.

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 u/s 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 p.m., 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.

In view of the facts and circumstances of the case, while holding that the offence u/s 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 grave and sudden provocation causes the

death of the person who gave the provocation. The judgment 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 u/s 304, Part-II, IPC. Accordingly the

sentence of life imprisonment imposed by the trial Judge on the appellant/accused for the offence u/s 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.

The appeal is allowed with the above modification.