JOSEPH ALIAS AVUTHAKUNHI Vs. STATE OF KERALA
LAWS(KER)-1963-1-17
HIGH COURT OF KERALA
Decided on January 28,1963

JOSEPH ALIAS AVUTHAKUNHI Appellant
VERSUS
STATE OF KERALA Respondents


Cited Judgements :-

SAINUDEEN VS. STATE OF KERALA [LAWS(KER)-1990-4-3] [REFERRED TO]
ARUNACHALAM VS. STATE OF KERALA [LAWS(KER)-2003-5-11] [REFERED TO]
REDDI APPALANAIDU VS. STATE OF A P [LAWS(APH)-2001-12-92] [REFERRED TO]


JUDGEMENT

- (1.)THE appellant Joseph stands convicted under S. 302 I. P. C. and sentenced to the extreme penalty for having caused the death of his wife.
(2.)IT is alleged that at about 8 or 8-30 P. M. on 13 31962 the accused who was not getting on too well with his wife Thressia quarrelled with her and as the result of the severe man-handling that followed she died on the spot. Two of the accused's neighbours Chandy (Pw. 1) and sivaraman Chettiar (Pw. 2) who had heard the sounds of the beating and thressia's cries, but had not thought of interfering in the quarrel, were informed by the accused that when he returned home he found his wife lying dead in the court-yard of the house. These witnesses went out to the accused's house and saw the dead body. Then at the request of the accused Pw. 1 went and reported the incident to the father of the accused. He also informed Pw. 4 ulahannan who on the next day at 6-15 P. M. went to the Irikkur Police Station and gave the information that the accused's wife had died under suspicious circumstances. Within a few hours the police arrived on the scene of occurrence and conducted the inquest. The dead body was sent to Kuthuparamba Government hospital where the post-mortem was conducted on the morning of the 16th. The accused who was not found at the house when the police arrived was arrested at a place four furlongs from his house at 5 P. M. on the 15th.
The accused denies the charge. According to him when he returned home at about 930 P. M. he saw his wife lying dead in the court yard with her ornaments missing. He carried the dead body inside and went to inform his neighbours pws. 1 and 2. As both of them did not respond to his calls he returned home. He then took his children to his sister's house. On his return he again went to the house of pws. 1 and 2 and called out to them. This time they answered to his calls and when they came out he told them about the incident. He also asked Pw. 1 to inform his parents about it. After some time his parents as also the neighbours came to the house and saw the dead body. The next day at about 12 noon he went to the Irikkur Police Station and informed the station writer about the incident. The writer asked him to go back to his house and promised that the Head Constable who was not present there at the time would be sent to the place of occurrence as soon as he returned to the station. The accused also maintains that he was arrested at his house at 11 P. M. on 14 31962.

Thressia's death is admitted. The autopsy revealed several areas of discolorations of the skin, on the face, head, chest and back. Internally most of the ribs on both sides as well as the sternum were found to have been fractured and there were lacerations on the lungs. The doctor gives his opinion that death must have been instantaneous.

(3.)THIS is a typical case where suspicions have been substituted for proof. There is neither direct nor circumstantial evidence to connect the accused with the crime. Instead of considering the prosecution evidence, first, the learned judge began to pick holes in the defence suggestion and tried to fill up the gaps in the prosecution case by the defects in the defence arguments. The judgment starts with a discussion of the defence suggestion of a fall from a cashew tree standing in the court-yard of the accused's house. The very approach made by the learned judge is decidedly wrong. The accused has no obligation to prove his innocence. The burden to prove the accused's guilt is ever on the prosecution and if the prosecution has failed to establish the guilt beyond a shadow of doubt the accused should be acquitted no matter how far-fetched and unconving his suggestions might appear to be. THIS may appear to be too elementary, but it is the obvious that is often missed and the first principles that are always disregarded.
There are no eye-witnesses. The prosecution relies mainly on the testimony of the two neighbours of the accused who swear that they heard the sounds of the accused beating up his wife.

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