Raja @ Nagaraj v. State by Inspector of Police, Tiruppur North Police Station, Coimbatore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.616 of 2009Raja @ Nagaraj ..Appellant/AccusedVs.State byInspector of Police,Tiruppur North Police Station,Coimbatore District.(Crime No.1170/2007) ..Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District and SessionsJudge, Fast Track Court No.IV, Coimbatore at Tiruppur, made inS.C.No.27 of 2009 dated 8.5.2009.For Appellant : Mr.K.S.Ilangovan for M/s. Dass and Bose AssociatesFor Respondent : Mr.Babu Muthu Meeran, Addl.P.PJ 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 SessionsDivision, Fast Track Court-IV, Coimbatore at Tirupur whereby the soleaccused/appellant stood charged, tried and found guilty as per thecharge 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 canbe stated as follows: (a) P.Ws. 4 and 5 were the residents of Arivolinagar situatedwithin the jurisdiction of the respondent Police Station. Thedeceased and the accused belonged to the same place. They often usedto quarrel when they were in drunken mood. On 19.8.2007, at about3.00 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 thedeceased. There was wordy altercation between the accused and thedeceased. The accused took a brick and attacked him on the face ofthe deceased. The deceased fell down immediately. The deceased took abig stone and attacked him on his head. There was heavy bleeding.Thereafter, the accused dragged the body of the deceased to a nearbyroom and place it there and ran away. P.W.1, Village President gotinformation about the same and accompanied by P.W.2, his Assistant,he went to the place of occurrence and made an inspection. Heproceeded to the respondent Police Station and gave Ex.P1 report. Onthe strength of Ex.P1 report, P.W.11, the Sub-Inspector of Police,Tirupur North Police Station who was on duty, registered a case inCrime No.1170/2007 under section 302 IPC. The F.I.R., Ex.P12 wasdespatched to Court. (b) P.W.13, the Inspector of Police, took up investigation. Heproceeded to the spot, made an inspection and prepared theobservation mahazar Ex.P3 in the presence of witnesses andpanchayatdars. He also drew a rough sketch, Ex.P11. Further, heconducted inquest on the dead body of the deceased and prepared theinquest report, Ex.P.14 and also recovered the material objects fromthe place of occurrence. The dead body was subjected to post mortem.On requisition, P.W.10, doctor conducted autopsy on the dead body ofthe deceased and gave his opinion in the post mortem certificateEx.P11 that he died out of shock and haemorrhage, 18 to 21 hoursprior to autopsy due to the head injury sustained by him. (c) Pending investigation the accused was arrested. He cameforward to give confessional statement and the same was recorded inthe presence of witnesses. The admissible part of the confessionalstatement was marked as Ex.P4. Pursuant to the confessionalstatement, he produced M.O.7 blood stained banian. The same wasrecovered under a cover of mahazar Ex.P5. Then, he was sent forjudicial remand. All the material objects were subjected to chemicalanalysis by the Forensic Science Department and two reports werereceived viz., Exs.P.8 & 9. On completion of the investigation, theinvestigating officer filed a final report.(e) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 13 witnesses and relied on 15 exhibits and 12material objects. On completion of the evidence on the side of theprosecution, the accused was questioned under section 313 Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses. He denied them as false. No defence witnesswere examined. The Court heard the arguments advanced on either sideand took the view that the prosecution has proved the case beyondreasonable doubt and found the accused guilty of the charge andawarded 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, thelearned counsel, Mr.K.S.Ilangovan, would submit that in the instantcase, the prosecution relied on direct evidence of P.Ws. 4 and 5 aseye witnesses. They have claimed that they are close associates ofthe deceased. Before accepting their evidence it has to be carefullyscrutinised since they are interested witnessed. When the evidence ofP.Ws. 4 and 5 are looked into, there was lot of discrepancies inmajor aspects. Their evidence are filled with suspicion and there arereasonable doubts. Hence, their evidence should have been rejected.Further, the investigator has claimed that blood stained stone wasalso recovered from the place of occurrence. P.W.8, photographercategorically admitted that when the photographs were taken even inthe photographs marked as M.O.2, the blood stained big stone was notfound. Even the investigator has admitted that nearby the dead body,no blood stained stone was found. Under such circumstances, therecovery of the blood stained stone, the weapon of crime, wasthoroughly doubtful.4. Added further learned counsel, the medical opinion canvassedthrough the post mortem doctor and the contents in the post mortemcertificate did not corroborate with the ocular testimony. Theevidence of the investigator that at the time of arrest, the accusedcame forward to give confessional statement and also M.O.7 bloodstained banian was recovered from the accused, were all subsequentlyintroduced in order to strengthen the prosecution story, but in vain.Thus, the prosecution miserably failed to prove its case. But thetrial Court has taken an erroneous view. Under such circumstances,the accused/appellant is entitled for acquittal in the hands of thisCourt.5. The Court heard the Additional Public Prosecutor on the abovecontentions and paid its anxious consideration on the submissionsmade.6. It is not in controversy that one Ravichandran @ Jeevanandhammet his death in an incident that had taken place at 3.00 p.m. on19.8.2007 following the registration of the case under section 302I.P.C. by P.W.12 Sub Inspector of Police, Tirupur North Policestation. P.W.13, investigating officer took up investigation. Heproceeded to the spot, made and inspection and conducted inquest onthe dead body of the deceased and after preparation of the inquestreport Ex.P.14, the dead body was subjected to post mortem. P.W.10,doctor conducted autopsy on the dead body and gave his opinionthrough the contents of the post mortem certificate and also as awitness before the Court that the deceased died out of shock andhaemorrhage due to the injuries sustained by him on his head. Thecause of death as put forth by the prosecution that the deceased diedof 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 bythis Court in recording so. 7. In order to substantiate that it was the accused who attackedthe deceased with big stone on his face and also caused his deathdirectly, the prosecution relied on the evidence of P.Ws. 4 and 5who were eye witnesses. A comment was made by the learned counselfor the appellant that P.Ws. 4 and 5 were close associates of thedeceased and they were interested witnesses and hence, their evidencehas got to be scrutinised carefully. The Court is mindful of thecaution made by the Apex court and also the settled principles of lawthat before accepting the evidence of interested witness, it musttest the evidence carefully. In the instant case, the learned counselbrought to the notice of the Court that there are lot ofdiscrepancies in their evidence but when their evidence was lookedinto it is seen that they are minor most discrepancies. P.Ws. 4 and 5categorically stated that they were present at the time of occurrenceand there was wordy altercation. The deceased had quarrelled withthe mother and sister of the accused. Apart from that P.Ws. 4 and 5was the close associate of not only the deceased but also theaccused. Under such circumstances, no doubt muchless reasonable doubtis noticed by this Court in order to doubt their testimony. Theocular testimony projected through P.Ws. 4 and 5 truthfullycorroborates with the medical evidence canvassed through the postmortem doctor,P.W.10 who has categorically given opinion in the postmortem certificate where the external injuries on the dead body, thattoo, on the face and skull corroborates with the ocular testimonyprojected 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 tothe confessional statement given by the accused. All would got toshow that the contention putforth by the learned counsel for theappellant do not carry any merits whatsoever. Hence, the prosecutionhas proved that it was the accused who attacked the deceased withbrick stone on the face and skull and caused his deathinstantaneously.9. The Court is able to see force in the contention putforth bythe learned counsel for the appellant in the second line of argument.Even as per the prosecution case, at the time of occurrence, theaccused came in a drunken mood and quarrelled with the mother of theaccused and there was wordy altercation also. The Court perused theentire material on hand which would be indicative of the fact thatthe accused found the deceased dragging the hands of his mother in adrunken mood. Despite the advise given by the accused, the deceasedbeat the accused. Under such circumstances, due to provocation theaccused has acted so. At this juncture, it is pertinent to point outthat when the occurrence has taken place, the accused was not havingany 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 thesecircumstances, the act of the accused was neither intentional norpremeditated, but it was only due to sudden quarrel and provocation,the accused took the big stone and attacked the deceased and hencethe death has ensued. Therefore, the act of the accused would notattract the penal provision of murder, but it would be one culpablehomicide not amounting to murder. The Court is of the opinion thatthe act of the accused would attract the penal provision of Section304(II) IPC and awarding punishment of 5 years R.I. would meet theends of justice.10.Accordingly, the conviction and sentence imposed on theappellant under Section 302 IPC are modified and instead theappellant is convicted under Section 304(II) IPC and sentenced toundergo 5 years R.I. The period of sentence already undergone by theappellant is ordered to be given set off. The fine amount and thedefault sentence imposed by the trial court will hold good.11. With the above modification in conviction and sentence, thiscriminal appeal is dismissed.Sd/-Asst. Registrar//true copy//Sub Asst.Registrar vsiTo1. 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 2009KLT {CO}TP/22.12.2009.