JOHAN ROASE Vs. STATE

JUDGEMENT

(1.) 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 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:

(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 homi-cide 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.