Mohhamed Ali Jhinna @ Jhinna v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.661 of 2009Mohhamed Ali Jhinna @ Jhinna ..Appellant/AccusedVs.State byInspector of Police, Pallavaram Police Station,Chennai – 600 043.(Crime No.68/2008) ..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-I at Chengalpattu made in S.c.No.231 of 2008dated 26.6.2009.For Appellant : Mr.B.RajamaniFor 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 the judgment of the Additional District andSessions Division, Fast Track Court No.1, Chengleput, made inS.C.No.231 of 2008 whereby the sole accused stood charged, tried andfound guilty of murder and awarded life imprisonment along with fineof Rs.1,000/- in default to undergo one month rigorous imprisonment.2. The short facts necessary for the disposal of the appeal canbe stated as follows:(a) P.W.1 was working as a Manager in Tirupur Cotton TerminusCloth shop . P.Ws. 2 and 4 were the salesmen and P.W.4 was acustomer of the said shop. The accused and the deceased were workingas the salesmen of the said shop during the relevant time. Theaccused used to steal clothes from the shop during night hours andsell them in the open market and it was noticed by the deceased. On https://hcservices.ecourts.gov.in/hcservices/

1.2.2008, during night hours, when the accused was stealing theclothes, the same was noticed by the deceased and the deceasedquestioned the accused. At that time, there was a quarrel betweenthem. The next day morning, that was on 2.2.2008 at about8.30 a.m., when P.Ws. 1 and 4 were actually sitting in the cashcounter, the accused and the deceased quarrelled with each other. Thedeceased told the accused that he would reveal the theft made by theaccused to the Manager. At that time, the accused took a knife, M.O.1and stabbed the deceased on the neck and on different parts of thebody. The same was witnessed by P.Ws.1 and 4. When question, theaccused threatened them with the knife and ran away from the placeof occurrence. (b) P.W.1 and others took the severely injured deceased to thedoctor. P.W.10, doctor attached to the Tambaram Government Hospitaladmitted him and gave treatment. The wound certificate in that regardwas marked as Ex.P9. Then, he was taken to the Chennai GovernmentHospital where he was declared dead by the doctor. In the meanwhile,P.W.9 Sub Inspector of Police, who was on duty, received thecomplaint, Ex.P1 from the deceased and on the strength of which, acase came to be registered under section 307 IPC in Crime No.68 of2008. The F.I.R., Ex.P8 was despatched to Court.(c) P.W.11, Inspector of Police took up investigation. He wentto the spot, made an inspection and prepared the observation mahazarEx.P2 and drew a rough sketch Ex.P.10 He also recovered the materialobjects from the place of occurrence. He got information from theGovernment Hospital that the deceased died. Hence, the case which wasoriginally registered under section 307 IPC was altered to section302 IPC and the amended F.I.R., Ex.P.11 was sent to Court. Heconducted inquest on the dead body of the deceased in the mortuaryand prepared the inquest report, Ex.P.12 in the presence of witnessesand panchayatdars. Thereafter, the dead body was subjected to postmortem. (d) P.W.8, doctor attached to the Madras Medical CollegeHospital, on the requisition made by the Investigation Officer,conducted autopsy on the dead body of the deceased Syed Ibrahim andissued Ex.P6, post mortem certificate wherein he has opined that thedeceased would appear to have died of shock and haemorrhage due tostab injury on the neck.(e) Pending investigation, the accused was arrested. He cameforward to give confessional statement which was recorded in thepresence of witnesses. The admissible part of the same was marked asEx.P4. Pursuant to which, he produced M.O.1, knife which wasrecovered under a mahazar. Thereafter, the accused was sent tojudicial remand. All the material objects recovered from the place ofoccurrence and the knife, weapon of crime recovered from the accusedpursuant to the confessional statement given by him were sent for https://hcservices.ecourts.gov.in/hcservices/ chemical analysis by the Forensic Science Department and Ex.P.15,biology report was received and produced before the Court. Oncompletion of investigation, the investigating officer filed a finalreport.(f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 12 witnesses and relied on 15 exhibits and 3material 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 ofprosecution witnesses and he denied them as false. No defence witnesswas examined. The trial Court heard the arguments advanced on eitherside and took the view that the prosecution has proved the casebeyond reasonable doubt and found the accused guilty as per thecharge of murder and awarded life imprisonment along with fine anddefault sentence. Hence, this appeal at the instance of the appellant.3. Advancing the arguments on behalf of the appellant, thelearned counsel would submit, in the instant case P.Ws. 1 to 4 wereexamined as eye witnesses. Though, P.W.1 is the Manager, P.Ws. 2 and4 were the salesmen and P.W.3 was the customer, their evidence wouldclearly indicate that there are lot of discrepancies on materialparticulars. The witnesses had admitted that there was quarrelbetween the accused and the deceased for more than 10 minutes. If theaccused/appellant and the deceased were salesmen in that shop, atthe relevant time, P.W.1 who was the Manager should have intervenedand pacified the situation, but not done so. When the occurrence hadtaken place, there were number of persons available in the shop.Therefore, the accused could have been caught by some one else butnot so. A perusal of the post mortem certificate would reveal thatthere was injury on the neck and it had actually pierced into thewind pipe. If to be so, the deceased could have not spoken at all,but the prosecution has come with the story that the deceased wastaken to the Police Station immediately, and the deceased gave acomplaint and on the basis of which a case came to be registered arehighly unbelievable. So far as the injury found in the post mortemcertificate was not accounted by the so called eye witnesses, therecovery and the alleged confessional statement, pursuant to whichM.O.1 knife were all cooked up in order to strength the prosecutioncase. The prosecution has miserably failed to prove its case beyondreasonable doubt, but the trial Court has taken an erroneous view andconvicted the accused. 4. On the second lie of argument, the learned counsel for theappellant would submit that all the eye witnesses have categoricallystated that there was a quarrel between the accused and the deceasedat the time of occurrence. The previous day also there was a quarrelas found in Ex.P1 report. Even on the morning hours, when thebusiness was about to commence, it was the deceased who told the https://hcservices.ecourts.gov.in/hcservices/ accused that he would bring to the notice of the Manager as to thetheft committed by the accused/appellant. Annoyed by the same and dueto sudden provocation and heat of passion, the accused has acted so.Therefore, the act of the accused would not attract the penalprovision of murder, but it would be one culpable homicide notamounting to murder which has got to be considered by this Court. 5. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made. 6. It is not in controversy that pursuant to the incident thathad taken place on 2.2.2008 at about 8.30 a.m. inside the shop theseverely injured deceased was taken to the Police Station and on hisstatement, a case came to be registered under section 307 I.P.C. Hewas taken to the Government Hospital at Tambaram and thereafter tothe Government Medical College Hospital,Chennai. Despite treatment,he succumbed to injuries. Originally, a case, which came to beregistered under section 307 IPC was subsequently, altered to section302 IPC. Following the inquest made by the investigating officer, thedead body was subjected to post mortem P.W.8 doctor conductedautopsy and issued post mortem certificate, Ex.P.6 wherein he hasopined that the deceased died out of shock and haemorrhage due to theinjury sustained on the neck. The time and cause of death as putforthby the prosecution was never disputed by the appellant before thetrial Court or before this Court. Under such circumstances, the trialCourt was perfectly correct in recording that the deceased died outof homicidal violence.7. In order to substantiate that it was the accused who stabbedthe deceased to death, the prosecution to its advantage had four eyewitnesses viz., P.W.1-Manager of the Shop was sitting in the cashcounter during the relevant time. P.Ws. 2 and 4, the salesmen werestanding nearby the place of occurrence and P.W.3, a customer whocame to the shop also witnessed the occurrence. Despite crossexamination in full, they all have spoken in one voice that at thetime of occurrence, there was a quarrel between the accused and thedeceased and the accused took a knife and attacked on the neck of thedeceased and caused fatal injury.8. It is true, the learned counsel brought to the notice of theCourt, certain discrepancies available in their evidence but thesediscrepancies are minor most in character, which in the consideredopinion of the Court will not tilt the truth or rigour of theprosecution case. In so far as the ocular testimony projected throughP.Ws. 1 to 4 are concerned, their evidence corroborates with themedical evidence canvassed. The evidence of P.W.10 who examined thedeceased and P.W.8, the doctor who conducted post mortem on thedeceased corroborate with the evidence of P.Ws.1 to 4. https://hcservices.ecourts.gov.in/hcservices/

9. Yet another circumstances is the recovery of knife, weapon ofcrime pursuant on the confessional statement made by the accused. Thewitness to that effect was also examined and there is nothing todoubt about the same. The recovery of weapon of crime, M.O.1 knifefrom the accused on his confessional statement points to the nexusbetween the crime and the accused. All would go that show that theprosecution has abundant witnesses to indicate the culpability of theaccused that he who attacked the deceased with knife and caused hisdeath. In the event of such evidence, the contention putforth by thelearned counsel for the appellant do not merit acceptance and hence,it has got to be rejected, accordingly rejected. Thus, theprosecution is successful enough in proving the factual position thatit was the accused who attacked the deceased with knife on the neckand caused his death. 10. On the second line of argument, the Court is able to seeforce in the contention putforth by the learned counsel for theappellant. It is admitted by the prosecution that on 1.2.2008, duringnight hours, there was a quarrel between the accused and thedeceased. The deceased told the accused that he would reveal theactivities of theft of clothes from the shop by the accused to theManager of the shop. The next day morning, when the business wasabout to commence, there was a quarrel between the accused and thedeceased. It was the deceased who again informed the accused that hewill inform the Manager of the shop as the activities of theaccused. The accused was annoyed by the same and due of suddenprovocation, he has taken a knife and attacked the deceased andcaused his death. Under these circumstances, it would be quite clearthat the act of the accused was neither intentional nor premeditatednor planned, but it was done due to sudden quarrel, which arosebetween the deceased and the accused. Hence, the act of the accusedwould not attract the penal provision of murder, but it would be oneculpable homicide not amounting to murder and therefore, the act ofthe accused would attract the penal provision of Section 304(I) IPCand awarding punishment of 7 years R.I. would meet the ends ofjustice.11.Accordingly, the conviction and sentence imposed on theappellant under Section 302 IPC are modified and instead theappellant is convicted under Section 304(I) IPC and sentenced toundergo 7 years R.I. The period of sentence already undergone by theappellant is ordered to be given set off. The fine amount and defaultsentence imposed by the trial court will hold good. https://hcservices.ecourts.gov.in/hcservices/

12.With the above modification in conviction and sentence, thiscriminal appeal is dismissed.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarvsiTo1. The Additional District and Sessions Judge, Fast Track Court-I,Chengalpattu2. -do- Through The Principal Sessions Judge, Chengalpattu. 3. The Inspector of Police, Pallavaram Police Station, Chennai – 600 043.4. The Superintendent, Central Prison, Puzhal, Chennai.5. The District Collector, Chengalpattu.6. The Director General of Police, Chennai-4.7. The Public Prosecutor, High Court, Chennai8. The Section Officer, Criminal Section, High Court, Madras.1 cc to M/s.B.Rajamani, Advocate, Sr.No.68082CRL. APPEAL No.661 of 2009KS {CO}TP/23.12.2009.