JOSEPH ALIAS POLAYA Vs. STATE

JUDGEMENT

(1.) 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.) 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.