BAIL SLIP The Appellant / Accused viz.Babu @ Chokkaiyan, S/o. Alagiri was directed to be released on bail as per the order of the Court dated 30.7.2009 in Crl.M.P.No.1 of 2008 in Crl.A.No.528 of 2008. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 19.06.2009 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.528 of 2008 Babu @ Chokkaiyan ... Appellant/Single Accused ..Vs.. State by Inspector of Police, B-9, Saravanampatti Police Station, Coimbatore District. ... Respondent/Complainant Appeal filed under section 374(2) Cr.P.C. praying for the relief as stated below. For Appellant : Mr. Ma. P. Thangavel For Respondent : Mr. N.R. Elango, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 29.6.2007 passed by the Additional District and Sessions Court (F.T.C. No.2), Coimbatore in S.C. No.17 of 2007, whereby the sole accused stood charged, tried and found guilty for the offence under Section 302 I.P.C. and awarded with the punishment of life imprisonment together with fine of Rs.1,000/- in default to undergo Simple Imprisonment for one year. 2. The short facts necessary for the disposal of the case can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.1, who is the native of Ganapathy, Coimbatore, was serving as a Ward Councilor. P.W.2 is also a resident of that area and he is carrying on a business of grocery shop. P.W.3, accused and the deceased Raja were all working together and apart from that, they are closely associated with each other. (ii) On 25.6.2006, all of them went for taking liquor at a shop situated in 7th Cross Street, Gandhipuram, Coimbatore. When they came outside, the deceased Raja talked ill of the mother of the accused, touching her morality and there was a scuffle between the accused and the deceased. P.Ws.3, 4 and 5 intervened and pacified the situation. Again, on 26.6.2006, when the accused and the deceased went for taking liquor, there were continuous quarrel. (iii) On 29.6.2006, the accused, deceased and one Iyyappan went for taking liquor. When they came outside, in a drunken mood, the said Iyyappan fell in a ditch and he was taken out by both the accused and the deceased. When P.W.4 was standing in front of the auto stand, he found the deceased in the company of the accused at 7.15 p.m., (iv) On 30.6.2006 at about 10.00 a.m., when P.W.1 was proceeding near the railway track, he found a dead body. When he went nearby, he was able to identify, it was the deceased. Immediately he proceeded to the respondent police station, gave complaint Ex.P1 to P.W.16, the Sub Inspector of Police. On the strength of the same, a case was registered in Crime No.785 of 2006 for the offence under Section 302 I.P.C. Express First Information Report Ex.P21 was sent to the Court. (v) P.W.17 Inspector of Police took up the investigation, went to the spot and prepared Ex.P2 Observation Mahazar and Ex.P22 sketch in the presence of the witnesses. He recovered M.Os.1 to 9 in the presence of the writnesses under the cover of mahazar Ex.P3. Photographs were taken through P.W.3 and the same were marked as M.O.13 series. Thereafter, the Investigating Officer conducted inquest on the dead body and prepared inquest report Ex.P23 in the presence of witnesses and sent the dead body through P.W.13 for the purpose of post-mortem. (vi) P.W.12 Doctor Edwin Joe conducted post-mortem on the dead body and gave post-mortem Certificate Ex.P13 and final opinion Ex.P15, where he opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by him. (vii) Pending investigation, the Investigating Officer arrested the accused on 2.7.2006 at about 6.00 a.m. He voluntarily came forward to give confession statement, which was recorded in the presence of witnesses and the admissible portion of the same is https://hcservices.ecourts.gov.in/hcservices/ marked as Ex.P4. Pursuant to the same, the accused produced M.O.10 blood stained shirt, M.O.11 pant and M.O.12 blood stained knife and the same were recovered in the presence of witnesses under the cover of mahazar and the same were marked as Ex.P5 and P6. The accused was sent for judicial remand. (viii) Thereafter, all the material objects were subjected to chemical analysis. Chemical analysis report and Serological reports Ex.P10 and P11 were received by the Judicial Magistrate Court No.2, Coimbatore. At the time of investigation, near the dead body, a diary was actually recovered by the Investigating Officer. On requisition, the admitted writing of the accused found in Ex.P7 and the diary were sent to the hand-writing expert through the Court. The Expert's opinion is marked as Ex.P17, wherein he has opined that the writings that were found in diary was that of the accused . (ix) The Investigating Officer took up further investigation, examined the witnesses and recorded their statements. On completion of investigation, final report is filed against the accused. 3. The case was committed to the Court of Sessions and necessary charges were framed against the accused. In order to substantiate its case, the prosecution examined P.Ws.1 to 17 and relied on Exs.P1 to P23 and also relied on M.Os.1 to 13. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No defence witness was examined. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 I.P.C. and awarded with the punishment of life imprisonment together with fine of Rs.1,000/- in default to undergo Simple Imprisonment for one year. Hence this appeal is filed at the instance of the appellants. 5. Advancing arguments on behalf of the appellants, learned counsel would submit the following submissions:- (i) In the instant case, the prosecution had no direct evidence to offer. It rests on circumstantial evidence. But, the prosecution has not placed necessary circumstances in order to bring home the guilt of the accused. The evidence given by the prosecution witnesses would show that there were quarrel between the accused and the deceased from 25.6.2006 to 29.6.2006. The last seen theory was spoken to by P.W.4. https://hcservices.ecourts.gov.in/hcservices/ (ii) According to P.W.4, he found the deceased in the company of the accused at about 7.15 p.m. when he was standing near the auto opposite to liquor shop. He found both the accused and the deceased along with one Iyyappan, who were standing in front of the liquor shop. The said Iyyappan was not examined in support of the prosecution case. In so far as P.W.4 is concerned, he has stated that he found the deceased with the company of the accused at 7.15 p.m. But the occurrence had taken place during night hours, that too near railway track. (iii) P.W.4 has seen both the deceased and the accused in front of the liquor shop, which is away from the railway track, where the dead body of the deceased was found by P.W.1. Thus, the evidence of P.W.4 in no way connect the accused with the crime and it cannot be said that the last seen theory was by P.W.4. Except this evidence, the prosecution had no further evidence to offer. (iv) The recovery of blood stained shirt, pant and knife were all further development by the prosecution. The case of the prosecution in respect of arrest and recovery of M.Os. was actually shaking and therefore, the Trial Court should not have believed the evidence relied on by the prosecution. (v) The added circumstance is the recovery of diary. There is actually no proof that it was that of the accused. The prosecution had no evidence to offer at all. The Trial Court had taken erroneous view and was carried away by the fact that there was quarrel for few days prior to the date of occurrence between the accused and the deceased and thus on the evidence of P.W.4, which was really unbelievable, found the accused guilty and hence, benefit of doubt has to be given to the accused. (vi) Added further the learned counsel in his second line of argument that even as per the prosecution case, they had quarrel during night hours of 29.6.2006 and the occurrence took place in the early morning of 30.6.2006 and there were occasions in which the deceased talked ill of the mother of the accused, touching her chastity and it is quite natural that due to sudden provocation, the occurrence is said to have taken place. Even as per the evidence, the accused and the deceased were found quarreling, which continued for number of days, which actually would have been the reason which compelled the accused to act so and the said act of the accused cannot be said to be pre-determined or with an intention to cause death of the deceased. It has got to be considered by this Court that it would not attract the penal provisions of murder. 6. This Court heard the learned Additional Public Prosecutor on the above contentions. https://hcservices.ecourts.gov.in/hcservices/ 7. The Court paid its anxious consideration on the submissions made by either side. It is not in controvery that one Raja was done to death and his dead body was found near the railway track at the time and place of occurrence as put forth by the prosecution. On the complaint given by P.W.1, the investigators, after registration of the case and preparation of First Information Report., took up investigation. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.12 Doctor, who has given his categorical opinion before the Court as a witness and also through his post-mortem Certificate that the said Raja would appear to have died out of shock and hemmorhage and due to multiple injuries sustained by him and this fact was never disputed by the accused at any point of time. Hence, there is no impediment for this Court to accept the same as put forth by the prosecution. 8. In order to substantiate the case that it was the accused, who stabbed the deceased, by causing several injuries through out his body and caused his death, the prosecution had no direct evidence to offer, but it rests exclusively on circumstantial evidence. In the case of circumstantial evidence, the Court is mindful of caution to the ruling of the Apex Court and also settled principles of law that in a case, where the prosecution rests on circumstantial evidence, the same must constitute confidence in the mind of the Court that the circumstances, which stood against the accused, would point out the hypothesis that except the accused, no one could have committed the offence. In the instant case, the Court is fully satisfied that the accused has only committed the offence. 9. From the perusal of the evidence, the last seen theory was spoken to by P.W.4. Prior to the occurrence, at about 7.15 p.m., P.W.4 found the accused, the deceased and one Iyyappan in front of liquor shop at 7th Cross Street, Gandhipuram, Coimbatore and P.W.4 had stated that at that time, they were actually quarreling with each other. Following the said quarrel, the occurrence had taken place within few hours. It is also true that the said Iyyappan who was found with the deceased and the accused was not examined, but P.W.4 has categorically stated he was an auto driver and he saw the deceased, accused and Iyyappan were standing in front of the liquor shop. To reject his evidence, no sufficient material was brought forth by the accused. 10. Apart from this, near the dead body, a diary was actually recovered by the Investigating Officer at the time of investigation and the same was placed before the Court immediately and admittedly, the hand-writing of the accused was received and they were actually sent to the hand-writing expert and on examination, he has given a report Ex.P17 that the hand-writing received from the accused in Ex.P7 and hand-writing found in M.Os.2 and 3 Diary, which https://hcservices.ecourts.gov.in/hcservices/ was recovered near the deceased, are one and the same. It is for the accused to explain the same. But, he had no explanation to offer. When the prosecution was able to prove that the diary was that of the accused, which was found near the dead body, so long as the accused had no explanation to offer, it would be quite clear that this strong circumstance would link the accused to the crime. 11. Yet another circumstance, which stood against the appellant/accused was the recovery of M.O.10 shirt, M.O.11 pant and M.O.12 knife consequent upon the confessional statement given by the accused and recorded by the Investigating Officer in the presence of the witnesses and all these M.Os. were subjected to chemical analysis. On a perusal of chemical analysis report, it is quite clear that the blood stain found in these M.Os. were tallied with that of the deceased and this evidence remained unshaken. All would clearly indicate the fact that it was no one else, except the accused/appellant has committed the crime. Hence the contentions put forth by the learned counsel for the appellant in this regard do not carry any merit whatsoever and they are liable to be rejected and accordingly they are rejected. In the considered opinion of the Court, it was the accused, who has committed the death of the deceased at the time and place of occurrence as put forth by the prosecution. 12. Coming to the second line of argument that the act of the accused would not attract the penal provisions of murder, the Court is able to see some force in the contention of the learned counsel for the appellant. From the evidence of P.Ws.3 and 4, it is quite clear that for a few days i.e. from 25.6.2006 to 29.6.2006, the accused and the deceased had continuous quarrel then and there. At one point of time, the deceased had spoken ill of the mother of the accused touching her chastity, which lingered the mind of the accused. Even as per the evidence, they had quarrel on 29.6.2006 at about 7.15 p.m. in front of the liquor shop. It is quite natural that when the chastity of the mother was being talked, no person would tolerate the same. In the instant case, the evidence is available before the Court that the deceased had talked ill of the mother of the accused, touching her chastity, which lingered the mind of the accused and hence the occurrence had taken place. It is also brought to the notice of the Court that at the time of occurrence, the appellant was 19 years old. Under the circumstances, the act of the accused, in the considered opinion of the Court, would not attract the penal provisions of murder, but it would attract the penal provision of section 304(II) I.P.C. and awarding punishment of 5 years R.I would meet the ends of justice. 13. Accordingly, the conviction of the sentence imposed on the appellant under section 302 I.P.C. alone are modified and instead the appellant is convicted under section 304(II) I.P.C and sentenced https://hcservices.ecourts.gov.in/hcservices/ to undergo 5 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine and default sentence imposed by the trial court under Section 302 IPC will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Judicial Magistrate No.2, Coimbatore. 2. The Judicial Magistrate No.2, Coimbatore through the Chief Judicial Magistrate Coimbatore. 3.The Additional District and Sessions Court (F.T.C. No.2), Coimbatore. 4. -Do-Thro The Principal Sessions Judge, Coimbatore. 5.The Superintendent,Central Prison, Coimbatore. 6.The District Collector, Coimbatore 7.The Director General of Police, Mylapore, Chennai - 600 004. 8.The Inspector of Police, B-9, Saravanampatti Police Station, Coimbatore District. 9.The Public Prosecutor, High Court, Madras. 1 cc To Mr.Ma.P.Thangavel, Advocate, SR.24569 Copy to: The Section Officer, Criminal Section, High Court, Madras. Crl.A. No.528 of 2008 CU(CO) SRA(14/07/2009) https://hcservices.ecourts.gov.in/hcservices/