IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.391 OF 2009 Mustafa .. Appellant/Accused Vs. State rep. by Inspector of Police, B-12, Coimbatore Police Station. Coimbatore. .. Respondent/Complainant (cr.No.675/07) This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge at Coimbatore made in S.C.No.60/2008 dated 25.08.2008. For Appellant : Mr.C.M.Gunasekaran for M/s.V.Purushothaman For Respondent : Mr.Babu Muthu Meeran, APP JUDGMENT (The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of conviction and sentence passed by the learned Principal Sessions Judge, Coimbatore in S.C.No.60/2008 dated 25.08.2008. 2. The case of the prosecution in brief would be as follows:- (a) On 30.09.2007, at about 01.30 a.m, when the accused was at his shop, there was a wordy quarrel in between the accused and one Fyrosekhan. The deceased had uttered against the accused that if he https://hcservices.ecourts.gov.in/hcservices/ is born to one father, the accused should not get any clothes from his father. Immediately the accused had taken out the knife from his hip and had attacked on his head and neck with the knife and caused cut injuries and thereby the said Fyrosekhan died and accused had committed the offence u/s.302 I.P.C. (b) The case registered in Cr.No.675/2007 was investigated by the respondent police and the charge sheet has been filed before the Jurisdictional Magistrate and it was taken on file in PRC. No.6/2008 and after following the due procedure the said court committed the case to Sessions Court and the same was taken on file in S.C.No.60/2008. (c) The Trial court had framed necessary charges against the accused and had conducted the trial by examining 16 witnesses and admitted 14 documents and 3 material objects on the side of the prosecution. 3. The case of the prosecution as spoken by the evidence produced on the side of the prosecution would be as follows: (a) P.W.1 was residing at Door No.10 G.M.Nagar, Ukkadam and he used to purchase clothes from Kerala and sell them in the market and similarly on 29.09.2007 night when he was arranging the clothes for the Saturday market in the night by 00.30 or 01.00 a.m he heard some noise. When he went out and saw on the direction of noise, his son the deceased Fyrosekhan and the accused were fighting with each other and he had intervened and separated them and at that time Majid, Krishna, Thondiraj, Sadiqbasha were present and his son Fyrosekhan had told the accused that he should not purchase from his father if he was born to one father. Having heard so, the accused had taken out a knife from his hip and attacked on the head of his son and thereafter on his throat. On seeing the injury sustained by his son P.W.1 was screaming and the said Krishna and Thondiraj took his son in an autorickshaw to the hospital and P.W.1 went in another autorickshaw to the hospital. The Doctor after examination of his son told him that he was dead. P.W.2 had corroborated evidence of P.W.1. (b) P.W.14- Sub Inspector of Police had examined P.W.1 and recorded his statement and P.W.1 had signed in the complaint produced as Ex.P.1. he Police had registered the case and had commenced the investigation by inspecting the place of occurrence and collected the sample earth and blood stained earth. The investigator had prepared the Observation Mahazar and the rough sketch in the presence of P.W.4 and one Radhakrishnan. The police had also arrested the accused on 30.09.2007 at about 04.00 p.m. The accused had given a voluntary confession in the presence of P.W.5 and the same was recorded by the investigator and the accused had also confessed that he would identify the knife he used for the commission of the offence and the said confession leading to recovery is produced as Ex.P.4 and the https://hcservices.ecourts.gov.in/hcservices/ accused with the Inspector of Police went to the charcoal shop in Ukkadam fish market and had taken out a knife from the bag of charcoal. (c) When the deceased was taken to the hospital by Thondiraj from the place of occurrence it was reported to the dcotorthat a known person had assaulted the said Fyrosekhan at Ukkadam market and when the Fyrosekhan was examined by the Doctor he was found dead and the Doctor – P.W.7 had issued A.R. copy Ex.P.7. The Doctor P.W.8 had received a requisition from the police to conduct autopsy on the body of the deceased and accordingly he performed autopsy on 30.09.2007 at 01.15 p.m and completed the same and gave the opinion that the death of deceased Fyrosekhan would have been caused due to the knife cut on his head. P.W.9 was the photographer who had taken the blood stained place of occurrence and the deceased body of Fyrosekhan on 30.09.2007 itself. P.W.13 is the Head constable who had handed over the body of the deceased to the relatives of the deceased after completion of autopsy. (d) The Investigating Officer P.W.15 had secured the material objects and arrested the accused and recovered the weapon through the confession leading to recovery and had examined the witnesses and recorded their statement. P.W.16 the Investigating Officer who had succeeded P.W.15 had continued the investigation and had recorded necessary statement of witnesses and had filed the charge sheet u/s. 302 I.P.C. against the accused. (e) When the accused was questioned u/s. 313 Cr.P.C in respect of the incriminating circumstances adduced in the evidence of the prosecution, he would deny it as false, but he had not examined any other witnesses. 4. The Trial court after going through the evidence had entered conviction against the appellant u/s. 302 I.P.C and passed a sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- and in default to undergo six months rigorous imprisonment. The appellant has challenged the said conviction of sentence passed by the lower court in this appeal. 5. Heard Mr.C.M.Gunasekaran, learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent. 6. The learned counsel for the appellant/accused would submit in his argument that the lower court had erred in convicting the appellant on the basis of the interested and unreliable prosecution witnesses. The prosecution has not put forth any motive for the alleged offence committed by the appellant. The lower court should have rejected the evidence of P.W.1 which would be nothing but an interested testimony of P.W.1 who is none other than the father of https://hcservices.ecourts.gov.in/hcservices/ the deceased. The non examination of Thondiraj who is said to have accompanied the deceased to the hospital is fatal to the case of prosecution and none of the prosecution witnesses had spoken about the occurrence which is said to have taken place in the odd hours. He would further submit in his argument that the presence of the accused and the deceased person at the nocturnal hours i.e 01.30 a.m on 30.09.2007 was an impossible event and the evidence adduced by the prosecution witnesses cannot be believed. The investigator did not properly do the investigation and it did not even send the weapon to chemical analysis. P.W.2 could not also be believed as it was filled with contradictions with other evidence of other witnesses. Learned counsel for the appellant has insisted in his argument that the entire story of the prosecution is unbelievable and evidence even if it is considered to be acceptable, sentence as entered by the lower court cannot be sustained in view of the circumstances of the case. He would further submit in his argument that the circumstances of the case would not amount to conviction and sentence u/s. 302 I.P.C, even if the occurrence deemed to have been proved as true but it would only attract culpable homicide not amounting to murder as the prosecution witnesses have spoken about the quarrel had in between the deceased Fyrosekhan and the accused prior to the said occurrence. 7. He would further submit that sentence passed by the lower court, even if the accused is considered to be guilty of offence of causing death of Fyrosekhan that would only warrant a conviction u/s. 304 Part I I.P.C and not u/s. 302 I.P.C. Therefore, he would request the court to set aside the judgment of conviction and sentence passed against the appellant and to acquit him from the charges framed or to reduce the period of punishment by attracting the offence u/s. 304 Part 1 I.P.C instead of Section 302 I.P.C. 8. The learned Additional Public Prosecutor had also submitted his arguments. He would insist the court that the finding reached by the lower court are proper and are not liable to be set aside. He would support the judgment of lower court in every aspect and he wanted the appeal to be dismissed. He would also submit that the circumstances leading to the death of the deceased person would not amount culpable homicide not amounting to murder but it would squarely be covered u/s. 302 I.P.C. 9. Having applied our mind to the arguments advanced by both parties, we could see that the incident happened on 30.09.2007 at about 01.30 a.m in the morning in front of the shop belonging to P.W.1 in Ukkadam market and their was a wordy quarrel in between the accused and the deceased Fyrosekhan. Deceased Fyrosekhan was the son of P.W.1. P.W.1 was having a cloth shop in the platform and he was providing clothes to the accused and others who used to sell clothes in the market and settle accounts with the father of the deceased P.W.1. P.W.2 is a person who also knew about the deceased, accused and P.W.1 and was stated to be present at the place of occurrence on https://hcservices.ecourts.gov.in/hcservices/ the fateful night. The said evidence of P.W.2 would go a long way to show that there was a fight in between the accused and the deceased at about 01.15 a.m on 30.09.2007 at the plea of occurrence and during the night the deceased Fyrosekhan was uttering certain words denigting the paternity of the accused and by virtue of the said quarrel the incident had happened. The evidence of P.W.1 who is none other than the father of the deceased would go to show that he had separated the deceased and the accused when they quarrelled just before the occurrence on the same day. The case of the appellant is that the evidence of P.W.1 would be suspicious because the occurrence was said to have taken place at 01.30 a.m on 30.09.2007, when the accused was packing the clothes for the next day market. It was not disputed that the next day was the market day. Therefore, there cannot be any doubt that the people who used to sell clothes would be arranging the clothes for the next day market on Saturday and therefore the accused as well as the deceased were on their place and the father of the deceased P.W.1-Noor Mohammed was also preparing for the said market. 10. Therefore, the argument of the learned counsel for the appellant that the incident could not have been taken place during the nocturnal hours and there could not be any witnesses present at that time is liable to be rejected. When P.W.2 had supported the evidence of P.W.1 to the effect that the accused and the deceased were quarrelling each other and the accused had attacked the deceased Fyrosekhan on his head and also on his neck so as to cause serious injuries, on hearing the defamatory and provocative words from the mouth of Fyrosekhan that if the accused was born to one father he should not purchase the clothes from the father of deceased Fyrosekhan. 11. In the aforesaid circumstances, the other eye witnesses P.W.3 and P.W.4 turned hostile. However the arrest was effected by the Investigating Officer against the accused on the same day and the accused had also given a confession leading to the recovery of weapon in the presence of P.W.5. The seizure of the weapon taken from the godown in which the knife M.O.1 was seized would go a long way to show that the evidence of P.W.1 and P.W.2 were supported by the circumstantial evidence also. It was argued by the learned counsel for the appellant/accused that the weapon was not sent to any chemical analysis so as to pin point the accused cannot be correct because it is not necessary to send every material objects for chemical analysis when there are circumstances and evidence are available to prove the guilt of the accused. The test of reliability of the eye witness P.W.2 is crucial to decide the point at issue. 12. The argument of the learned counsel for the appellant would go to show that the evidence of P.W.2 cannot be relied upon since he had spoken that he did not know the name of the accused previously and he knew the name of the accused after ascertaining his name. He https://hcservices.ecourts.gov.in/hcservices/ would further argue that the Test Identification Parade is essential to identify the accused and therefore the evidence of P.W.2 is not at all sustainable and accordingly the evidence cannot be relied upon as a corroborative evidence of P.W.1. In each and every case it is not necessary that Test Identification Parade to be conducted. As far as this case is concerned, P.W.2 was not aware of the identification of the accused and he had ascertained the identification of the accused later and understood clearly that the person who attacked the deceased Fyrosekhan was none other than the accused. When it was ascertained by him he was able to identify the accused in the court while giving evidence and Test Identification Parade is not necessary in the circumstance of the case. Therefore the evidence of P.W.2 cannot be rejected on these reasons. The ocular evidence coupled with the evidence of Doctor regarding the injuries caused to the deceased person would show that the overtacts of the accused as spoken by P.W.1 and P.W.2 are true. Further evidence of Doctor would go a long way to show that the injuries sustained by the deceased had lead to the death of deceased Fyrosekhan. Thus the case of the prosecution against the accused is proved by cogent evidence beyond reasonable doubt. 13. Coming to the next argument of the learned counsel that the offence even if proved would not come under the definition of offence u/s. 302 I.P.C but would attract only the provision of 304 Part I I.P.C since there was no premeditation on the part of the accused nor any intention to cause the death of the deceased person at the time of the commission of the offence. Moreover, he would submit that the evidence produced by the prosecution would go to show that there was sudden provocation and on such sudden provocation the accused have committed the offence. He would argue that even as per the case of prosecution there was no intention for the accused to cause death of the deceased person. 14. As far as this argument is concerned when we go through the evidence of P.W.1 and P.W.2 and also the complaint that there was a wordy quarrel in between the deceased Fyrosekhan and accused immediately preceding the occurrence and in pursuance of the wordy quarrel there was a fight in between the deceased and the accused. We could also see that they were said to have been eased by P.W.1 the father of the deceased. Immediately after the settlement effected by P.W.1, it is the deceased person, who had commenced the further wordy quarrel with the accused by saying that the accused should not purchase any cloth from P.W.1 if he had actually born to one father. Certainly the words used by the deceased Fyrosekhan would provoke the accused to commit the said offence. There is no doubt that the accused was having a knife on his hip. Merely, keeping of knife on his hip would not make him to commit the offence of murder. In an earlier occasion when he was having quarrel with the deceased person he had not used the knife on his hip. But when he was abused by the deceased as mentioned already and the accused have been provoked by https://hcservices.ecourts.gov.in/hcservices/ such words of the deceased person and therefore, he assaulted the deceased person with the knife he had in his hip. In the aforesaid circumstances, the evidence would go to prove that the accused had been provoked by the words spoken by the deceased and the accused could not have been held for the commission of offence of murder. The offence committed by the accused would only amount to the commission of offence causing culpable homicide not amounting to murder due to sudden provocation. 15. In the aforesaid circumstances, we are of the considered view that the accused had committed offence u/s. 304 Part I I.P.C. The lower court had come to a wrong conclusion of convicting the accused u/s. 302 I.P.C which is liable to be set aside. The lower court ought to have convicted the accused only u/s. 304 Part I I.P.C. 16. Therefore it has become necessary for this court to set aside the judgment of conviction and sentence passed by the lower court u/s. 302 I.P.C and the accused is convicted u/s. 304 Part I I.P.C and is sentenced to undergo rigorous imprisonment for seven years and accordingly the conviction and sentence passed by the lower court is modified to that extent. 17. Accordingly the appeal is allowed in part and the conviction and sentence of life imprisonment u/s.302 by the lower court is modified into that of one u/s.304 Part I I.P.C., for which he stands sentenced to seven years rigorous imprisonment and to pay a sum of Rs.5000/- in default to undergo six months rigorous imprisonment and the period already undergone by the accused is ordered to be set off. kpr Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Principal Sessions Judge/ Special Judge, Coimbatore 2. The Judicial Magistrate No.5, Coimbatore. 3. -do- Through the Chief Judicial Magistrate, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent, Central Prison, Coimbatore. 5. The District Collector, coimbatore. 6. The Directpr General of Police, Mylapore, Chennai 7. Inspector of Police, B-12, Coimbatore Police Station. Coimbatore. 8. The Public Prosecutor, High Court, Chennai. Copy to the Section Officer, Criminal Section. High Court, Madras. 1 cc to Mr. V. Purushothaman, Advocate, SR.64464 Crl.A.No.391 of 2009 CK(CO) EU 18.12.2009. https://hcservices.ecourts.gov.in/hcservices/