IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.991 OF 2007 1.Ramesh @ Ramesh Babu 2.Balan @ Balakrishnan .. Appellants/Accused 1&2 Vs. State rep. by Inspector of Police, Pollachi West Police Station, Coimbatore District (Crime No.379 of 2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Sessions Judge, Fast Track Court No.1, Coimbatore made in S.C.No.184 of 2006, dated 30.03.2007. For Appellants : Mr.R.John Sathyan, Amicus Curiae For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional district and Sessions Division, Fast Track Court No.1, Coimbatore made in S.C.No.184 of 2006, whereby these two appellants along with the third accused stood charged as follows: A-1 and A-2 - Sections 302 r/w S.34 IPC and 506 (ii) (2 counts) IPC. A-3 - Section 201 IPC. On trial, A-1 and A-2 were found guilty under Section 302 r/w S.34 IPC and sentenced to undergo life imprisonment each and to pay a fine of Rs.1000/- each, in default to undergo 3 months S.I. each, and A-1 and A-2 were found not guilty under Section 506(ii) IPC and A-3 was also found not guilty under Section 201 IPC and they were acquitted of the said charges. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal could be stated thus: a)A-1 and A-2 are brothers and they are the sons of A-3. The sister of A-1 and A-2, by name Mahalakshmi, fell in love with the deceased Surendran and married him 1-1/2 years prior to the occurrence. Often, the deceased exercised cruel treatment over her and she used to go to parental home and A-1 and A-2 used to pacify and send her back. At the time of occurrence, she was staying in her mother's house. On 20.06.2005 at ab out 4.00 p.m., the deceased accompanied by P.Ws.1 and 2, who are his friends, went to the house of A-1 and A-2 and called his wife to come to his house, but she was refusing. In that process, A-3, who was present, also joined with her daughter. The deceased used filthy language and beat both of them. At that time, A-1 and A-2 also came over there and there was exchange of filthy language. Then, the deceased left the place along with P.Ws.1 and 2 in his TVS Suzuki bearing registration No.TN 41/5020, which was marked as M.O.6. b)Immediately, A-1 and A-2 took the auto of P.W.11 and were chasing the deceased at the road junction. A-1 and A-2 dashed the auto on the TVS Suzuki and all the three fell down. The deceased, in order to escape, was running, but A-1 and A-2 chased him and near the house of one Selvam, A-1 stabbed him with the knife on his back and A-2 also stabbed him with the knife on his chest and they also stabbed him indiscriminately and they left the place. c)The severely injured Surendran was taken to the hospital and on the way, he died and he was declared dead by the Doctor at Government Hospital, Pollachi. P.W.1 proceeded to the respondent police station at about 19.00 hours and gave Ex.P.1, the complaint to P.W.22, the Inspector of Police. On the strength of Ex.P.1, a case case came to be registered in Crime No.379 of 2005 under Section 302 IPC against A-1 and A-2. Ex.P.24, the F.I.R. was despatched to the Court. He recovered the bloodstained pant and shirt of P.W.1 under Form-95. Then, he took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.8, the observation mahazar and Ex.P.26, the rough sketch. The place of occurrence was photographed through P.W.14, the photographer. The negatives and photos were marked as M.O.11 (series). P.W.22 recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. He also recovered M.O.6, TVS Suzuki under a cover of mahazar. M.O.5, auto was also recovered under a cover of mahazar. On 21.6.2005 at about 8.00 a.m. he went to the Government Hospital, Pollachi and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.28, the inquest report. Following the same, the dead body was sent to the Government Hospital, Coimbatore for the purpose of autopsy. d)P.W.21, the Doctor attached to the Government Medical College Hospital, Coimbatore, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.23, the post-mortem certificate, wherein he has opined that the deceased https://hcservices.ecourts.gov.in/hcservices/ would appear to have died of shock and haemorrhage due to multiple stab injuries sustained by him. e)Pending investigation, the Investigator came to know that A-1 and A-2 surrendered before the Judicial Magistrate No.3, Coimbatore. Then, P.W.22 applied for police custody and accordingly, the same was ordered. On 8.7.2005, both A-1 and A-2 were taken to police custody and they were interrogated. They came forward to give confessional statement voluntarily and the same were recorded in the presence of the witnesses. The admissible part of the confessional statements of A-1 and A-2 were marked as Exs.P.11 and P.12 respectively. Pursuant to the same, they produced two knives, which were recovered under a cover of mahazar. Then, the accused were again sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department and the reports were also received. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 22 witnesses and also relied on 28 exhibits and 19 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found A-1 and A-2 guilty as stated above and awarded imprisonment as referred to above and it has recorded an order of acquittal of A-3. Hence this appeal has arisen at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the Amicus curiae counsel would submit that in the instant case, the prosecution rested its case on the evidence of P.Ws.1,2,3,4 and 7 as eyewitnesses; that so far as P.Ws.1 and 2 are concerned, it is admitted by the prosecution that they are the close friends of the deceased and hence they were all interested in deceased; that so far as P.Ws.3,4 and 7 are concerned, they were chance witnesses, but they were unable to explain under what circumstance they were present at the time of occurrence; that if the chance witness could not explain under what circumstances he was present at the time and place of occurrence, his evidence became doubtful; that in the instant cae, the evidence of P.Ws.3,4 and 7 actually became doubtful and that for those reasons, the lower court should have rejected the evidence of P.Ws.1,2,3,4 and 7. 5.Added further the learned counsel that the occurrence has taken place in front of the house of one Selvam, but the said Selvam was not examined; that the prosecution theory as if A-1 and A-2 gave confessional statements after they were taken to police custody and the M.Os.1 and 2 were recovered from them on production, has got to be disbelieved, since it was only created to suit the prosecution https://hcservices.ecourts.gov.in/hcservices/ story; that M.Os.1 and 2 were subjected to chemical analysis, but so far as M.O.2 was concerned, no human blood was detected and insofar as M.O.1, group test was found to be disintegrated and thus, the recovery of those M.Os. were not only not proved, but also were not useful to the prosecution case and hence the prosecution has not proved its case. 6.The learned counsel in his second line of argument would contend that even assuming that the court has agreed with the factual position that it was A-1 and A-2 who stabbed the deceased to death, the act of the accused would not attract the penal provision of murder; that it is an admitted position that it was the deceased who went to the house of the accused at the time of occurrence and he called his wife back, but she refused and at that time, he beat not only his wife, but also A-3, who is his mother-in-law and under these circumstances, A-1 and A-2, who are the sons of A-3, naturally got provoked and questioned the same; that the deceased has also spoken in filthy language and left the place and that being provoked by the same, immediately both A-1 and A-2 followed the deceased and attacked him and under these circumstances, the act of the accused was neither deliberate nor wanton, but it was only due to quarrel which has arisen inside the house and sudden provocation and under these circumstances, this aspect has also got to be considered by this court. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that Surendran, the husband of one Mahalakshmi, who is the sister of A-1 and A-2, was done to death in an incident that has taken place at the time and place as put forth by the prosecution. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.21, the Doctor, who has given his categorical opinion as a witness before the court and also in Ex.P.23, the post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to multiple stab injuries sustained by him. The fact that the deceased died out of homicidal violence was never disputed by the appellants at the time of trial or before this court and hence it has got to be recorded so. 9.In order to substantiate the charges that A-1 and A-2 sharing common intention, attacked the deceased with knife and caused death, the prosecution rested its case on the direct evidence by examining P.Ws.1 and 2. It is true, P.Ws.1 and 2 were close friends of the deceased, but on that ground, their evidence cannot be discarded. Immediately after the occurrence, P.W.1 rushed to the police station and has given the entire narration of the incident. Further, at the time when he has given Ex.P.1, the report, his bloodstained pant and shirt were recovered by the police and were sent to the court. The evidence of P.Ws.1 and 2 stood as corroborative piece of evidence to each other. From their evidence, it would be clear that they accompanied with the deceased to the house of the accused and https://hcservices.ecourts.gov.in/hcservices/ thereafter, they were all returning in TVS Suzuki. At that time, A-1 and A-2, who came in the Auto, dashed on the vehicle of the deceased and both P.Ws.1 and 2 along with the deceased fell down. The deceased in order to escape, was running, but A-1 and A-2 chased and stabbed him to death. Despite cross examination, the evidence of P.Ws.1 and 2 remained unshaken. Their evidence is natural, cogent and convincing and the trial court has rightly accepted the same. 10.Apart from their evidence, the evidence adduced by the prosecution through the post-mortem Doctor stood in full corroboration with the ocular testimony. Yet another circumstance is the recovery of M.Os.1 and 2 pursuant to the confession statements given by A-1 and A-2 at the time when they were taken to police custody. The recovery of weapon of crime consequent upon the confessional statements made by A-1 and A-2 would be pointing to the nexus of the accused with the crime. Thus, all put together, in the considered opinion of the court, would be sufficient to indicate that it was A-1 and A-2 who stabbed Surendran to death. In view of the same, the contentions put forth by the learned counsel for the appellants do not carry any merit whatsoever and they are liable to be rejected and accordingly, they are rejected. The lower court was perfectly correct in recording that it was A-1 and A-2 who stabbed the deceased to death at the time and place of occurrence. 11.So far as the second line of contention that both the accused have acted due to sudden provocation and hence the act of the accused cannot be termed as murder was concerned, the court has to necessarily agree with the learned counsel for the appellants. Even as per the prosecution case, during the relevant time, the wife of the deceased was actually staying in the house of A-1 to A-3 and it was the deceased who took P.Ws.1 and 2 and went to her house and called her back, but she refused. At that time, it was the deceased who not only beat his wife, but also his mother-in-law, who is A-3 in the case. Thus, it is quite natural for A-1 and A-2 to get provoked on seeing his mother/A-3 being beaten by the deceased. Further, the deceased also uttered filthy language on A-1 and A-2 and under these circumstances, A-1 and A-2 were provoked naturally and when the deceased went along with P.Ws.1 and 2 in the TVS Suzuki, A-1 and A-2 followed them in the Auto and dashed on the vehicle and when the deceased fell down, the A-1 and A-2 chased and stabbed him. Thus, the incident what has taken place inside the house, in which the deceased beat his wife and also A-3 and also uttered filthy language on A-1 and A-2 and the incident in which A-1 and A-2 stabbed him were continuing one. Under these circumstances, it would be quite clear from the evidence that both A-1 and A-2 have acted due to sudden provocation and hence the act of the appellants was neither intentional nor premeditated, but the act of A-1 and A-2 would be one culpable homicide not amounting to murder and hence it would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 12.Accordingly, the conviction and sentence imposed on the appellants under Section 302 r/w S.34 IPC are modified and instead the appellants are convicted under Section 304(I) IPC and sentenced https://hcservices.ecourts.gov.in/hcservices/ to undergo seven years R.I. each. The period of sentence already undergone by them is ordered to be given set off. The fine amount and default sentence imposed on the appellants under Section 302 r/w S.34 IPC by the trial court will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed. 13.Mr.R.John Sathyan, Amicus Curiae counsel is entitled to get remuneration from the Tamil Nadu Legal Services Authority, Chennai. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Additional District Sessions Judge, Fast Track Court No.1, Coimbatore. 2.The Principal Sessions Judge, Coimbatore. 3.The Inspector of Police, Pollachi West Police Station, Coimbatore District. 4.The Public Prosecutor, High Court, Madras. 5.Mr.John Sathyan Advocate(Amicus Curiae) in Crl.A.NO.991/2007 High Court, Madras. 6.The Secretary, Tamilnadu Legal Services Authority, Chennai. 7.The Superintendent, Central Prison, Coimbatore. 8.The Director General of Police, Madras. 9.The District Collector, Coimbatore. Copy to:The Section Officer, Criminal Section, High Court, Madras. CRL.A.NO.991 OF 2007 JSV(CO) SRA(04/12/2008) https://hcservices.ecourts.gov.in/hcservices/