IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.616 of 2009 Raja @ Nagaraj ..Appellant/Accused Vs. State by Inspector of Police, Tiruppur North Police Station, Coimbatore District. (Crime No.1170/2007) ..Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.IV, Coimbatore at Tiruppur, made in S.C.No.27 of 2009 dated 8.5.2009. For Appellant : Mr.K.S.Ilangovan for M/s. Dass and Bose Associates For Respondent : Mr.Babu Muthu Meeran, Addl.P.P J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court-IV, Coimbatore at Tirupur whereby the sole accused/appellant stood charged, tried and found guilty as per the charge and awarded life imprisonment along with fine of Rs.1000/-, in default, to undergo six months rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.Ws. 4 and 5 were the residents of Arivolinagar situated within the jurisdiction of the respondent Police Station. The deceased and the accused belonged to the same place. They often used to quarrel when they were in drunken mood. On 19.8.2007, at about 3.00 p.m., the deceased came in a drunken mood and quarrelled with https://hcservices.ecourts.gov.in/hcservices/ Padma, the mother of the accused and Revathi, sister of the accused. Immediately, the accused on seeing this, quarrelled with the deceased. There was wordy altercation between the accused and the deceased. The accused took a brick and attacked him on the face of the deceased. The deceased fell down immediately. The deceased took a big stone and attacked him on his head. There was heavy bleeding. Thereafter, the accused dragged the body of the deceased to a nearby room and place it there and ran away. P.W.1, Village President got information about the same and accompanied by P.W.2, his Assistant, he went to the place of occurrence and made an inspection. He proceeded to the respondent Police Station and gave Ex.P1 report. On the strength of Ex.P1 report, P.W.11, the Sub-Inspector of Police, Tirupur North Police Station who was on duty, registered a case in Crime No.1170/2007 under section 302 IPC. The F.I.R., Ex.P12 was despatched to Court. (b) P.W.13, the Inspector of Police, took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P3 in the presence of witnesses and panchayatdars. He also drew a rough sketch, Ex.P11. Further, he conducted inquest on the dead body of the deceased and prepared the inquest report, Ex.P.14 and also recovered the material objects from the place of occurrence. The dead body was subjected to post mortem. On requisition, P.W.10, doctor conducted autopsy on the dead body of the deceased and gave his opinion in the post mortem certificate Ex.P11 that he died out of shock and haemorrhage, 18 to 21 hours prior to autopsy due to the head injury sustained by him. (c) Pending investigation the accused was arrested. He came forward to give confessional statement and the same was recorded in the presence of witnesses. The admissible part of the confessional statement was marked as Ex.P4. Pursuant to the confessional statement, he produced M.O.7 blood stained banian. The same was recovered under a cover of mahazar Ex.P5. Then, he was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Science Department and two reports were received viz., Exs.P.8 & 9. On completion of the investigation, the investigating officer filed a final report. (e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and relied on 15 exhibits and 12 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. He denied them as false. No defence witness were examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty of the charge and awarded life imprisonment. Hence, this appeal at the instance of the https://hcservices.ecourts.gov.in/hcservices/ appellant. 3. Advancing the arguments on behalf of the appellant, the learned counsel, Mr.K.S.Ilangovan, would submit that in the instant case, the prosecution relied on direct evidence of P.Ws. 4 and 5 as eye witnesses. They have claimed that they are close associates of the deceased. Before accepting their evidence it has to be carefully scrutinised since they are interested witnessed. When the evidence of P.Ws. 4 and 5 are looked into, there was lot of discrepancies in major aspects. Their evidence are filled with suspicion and there are reasonable doubts. Hence, their evidence should have been rejected. Further, the investigator has claimed that blood stained stone was also recovered from the place of occurrence. P.W.8, photographer categorically admitted that when the photographs were taken even in the photographs marked as M.O.2, the blood stained big stone was not found. Even the investigator has admitted that nearby the dead body, no blood stained stone was found. Under such circumstances, the recovery of the blood stained stone, the weapon of crime, was thoroughly doubtful. 4. Added further learned counsel, the medical opinion canvassed through the post mortem doctor and the contents in the post mortem certificate did not corroborate with the ocular testimony. The evidence of the investigator that at the time of arrest, the accused came forward to give confessional statement and also M.O.7 blood stained banian was recovered from the accused, were all subsequently introduced in order to strengthen the prosecution story, but in vain. Thus, the prosecution miserably failed to prove its case. But the trial Court has taken an erroneous view. Under such circumstances, the accused/appellant is entitled for acquittal in the hands of this Court. 5. The Court heard the Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Ravichandran @ Jeevanandham met his death in an incident that had taken place at 3.00 p.m. on 19.8.2007 following the registration of the case under section 302 I.P.C. by P.W.12 Sub Inspector of Police, Tirupur North Police station. P.W.13, investigating officer took up investigation. He proceeded to the spot, made and inspection and conducted inquest on the dead body of the deceased and after preparation of the inquest report Ex.P.14, the dead body was subjected to post mortem. P.W.10, doctor conducted autopsy on the dead body and gave his opinion through the contents of the post mortem certificate and also as a witness before the Court that the deceased died out of shock and haemorrhage due to the injuries sustained by him on his head. The cause of death as put forth by the prosecution that the deceased died of homicidal violence was never disputed by the appellant before the https://hcservices.ecourts.gov.in/hcservices/ trial Court or before this Court. Hence, no impediment is felt by this Court in recording so. 7. In order to substantiate that it was the accused who attacked the deceased with big stone on his face and also caused his death directly, the prosecution relied on the evidence of P.Ws. 4 and 5 who were eye witnesses. A comment was made by the learned counsel for the appellant that P.Ws. 4 and 5 were close associates of the deceased and they were interested witnesses and hence, their evidence has got to be scrutinised carefully. The Court is mindful of the caution made by the Apex court and also the settled principles of law that before accepting the evidence of interested witness, it must test the evidence carefully. In the instant case, the learned counsel brought to the notice of the Court that there are lot of discrepancies in their evidence but when their evidence was looked into it is seen that they are minor most discrepancies. P.Ws. 4 and 5 categorically stated that they were present at the time of occurrence and there was wordy altercation. The deceased had quarrelled with the mother and sister of the accused. Apart from that P.Ws. 4 and 5 was the close associate of not only the deceased but also the accused. Under such circumstances, no doubt muchless reasonable doubt is noticed by this Court in order to doubt their testimony. The ocular testimony projected through P.Ws. 4 and 5 truthfully corroborates with the medical evidence canvassed through the post mortem doctor,P.W.10 who has categorically given opinion in the post mortem certificate where the external injuries on the dead body, that too, on the face and skull corroborates with the ocular testimony projected through P.Ws.4 & 5. 8. Yet another circumstance which was against the accused / appellant is the recovery of M.O.7 blood stained banian pursuant to the confessional statement given by the accused. All would got to show that the contention putforth by the learned counsel for the appellant do not carry any merits whatsoever. Hence, the prosecution has proved that it was the accused who attacked the deceased with brick stone on the face and skull and caused his death instantaneously. 9. The Court is able to see force in the contention putforth by the learned counsel for the appellant in the second line of argument. Even as per the prosecution case, at the time of occurrence, the accused came in a drunken mood and quarrelled with the mother of the accused and there was wordy altercation also. The Court perused the entire material on hand which would be indicative of the fact that the accused found the deceased dragging the hands of his mother in a drunken mood. Despite the advise given by the accused, the deceased beat the accused. Under such circumstances, due to provocation the accused has acted so. At this juncture, it is pertinent to point out that when the occurrence has taken place, the accused was not having any stone in hand and he remained unarmed and being provoked, he https://hcservices.ecourts.gov.in/hcservices/ took a big stone lying aside and attacked the deceased. Under these circumstances, the act of the accused was neither intentional nor premeditated, but it was only due to sudden quarrel and provocation, the accused took the big stone and attacked the deceased and hence the death has ensued. Therefore, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. The Court is of the opinion that the act of the accused would attract the penal provision of Section 304(II) IPC and awarding punishment of 5 years R.I. would meet the ends of justice. 10.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(II) IPC and sentenced to undergo 5 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and the default sentence imposed by the trial court will hold good. 11. With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vsi To 1. Additional District and Sessions Judge, Fast Track Court No.IV, Coimbatore at Tiruppur. 2. do- Through the Principal Sessions Judge, Coimbatore. 3. The Superintendent, Central Prison, Coimbatore. 4. The Inspector of Police, Tiruppur North Police Station, Coimbatore District. 5. The Public Prosecutor, High Court, Chennai. 6. The District Collector, Coimbatore. 7. The Director General of Police, Chennai. 8. The Judicial Magistrate No.1, Tiruppur. https://hcservices.ecourts.gov.in/hcservices/ 9. -do- Through The Chief Judicial Magistrate, Coimbatore. 10. The Section Officer, Criminal Section, High Court, Madras. 1 cc to M/s.Dass & Bose Associates, Advocate, Sr.No.67500 CRL. APPEAL No.616 of 2009 KLT {CO} TP/22.12.2009. https://hcservices.ecourts.gov.in/hcservices/