Babu @ Chokkaiyan v. State by Inspector of Police,B-9, Saravanampatti Police Station,Coimbatore District

BAIL SLIPThe Appellant / Accused viz.Babu @ Chokkaiyan, S/o. Alagiri wasdirected to be released on bail as per the order of the Court dated30.7.2009 in Crl.M.P.No.1 of 2008 in Crl.A.No.528 of 2008.IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 19.06.2009CoramThe Honourable Mr. Justice M. CHOCKALINGAM andThe Honourable Mr. Justice C.S. KARNANCrl. A. No.528 of 2008Babu @ Chokkaiyan... Appellant/Single Accused..Vs..State by Inspector of Police,B-9, Saravanampatti Police Station,Coimbatore District.... Respondent/ComplainantAppeal filed under section 374(2) Cr.P.C. praying for therelief as stated below.For Appellant : Mr. Ma. P. ThangavelFor Respondent : Mr. N.R. Elango, Addl. Public ProsecutorJUDGMENT(Judgment was delivered by M. CHOCKALINGAM, J.)Challenge is made to the judgment dated 29.6.2007 passed bythe Additional District and Sessions Court (F.T.C. No.2), Coimbatorein S.C. No.17 of 2007, whereby the sole accused stood charged, triedand found guilty for the offence under Section 302 I.P.C. and awardedwith the punishment of life imprisonment together with fine ofRs.1,000/- in default to undergo Simple Imprisonment for one year.2. The short facts necessary for the disposal of the casecan be stated thus: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.1, who is the native of Ganapathy, Coimbatore, wasserving as a Ward Councilor. P.W.2 is also a resident of that areaand he is carrying on a business of grocery shop. P.W.3, accused andthe 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 ashop situated in 7th Cross Street, Gandhipuram, Coimbatore. When theycame outside, the deceased Raja talked ill of the mother of theaccused, touching her morality and there was a scuffle between theaccused and the deceased. P.Ws.3, 4 and 5 intervened and pacifiedthe situation. Again, on 26.6.2006, when the accused and thedeceased went for taking liquor, there were continuous quarrel.(iii) On 29.6.2006, the accused, deceased and one Iyyappanwent 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 theaccused and the deceased. When P.W.4 was standing in front of theauto stand, he found the deceased in the company of the accused at7.15 p.m., (iv) On 30.6.2006 at about 10.00 a.m., when P.W.1 wasproceeding near the railway track, he found a dead body. When hewent nearby, he was able to identify, it was the deceased.Immediately he proceeded to the respondent police station, gavecomplaint Ex.P1 to P.W.16, the Sub Inspector of Police. On thestrength of the same, a case was registered in Crime No.785 of 2006for the offence under Section 302 I.P.C. Express First InformationReport 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.P22sketch in the presence of the witnesses. He recovered M.Os.1 to 9 inthe presence of the writnesses under the cover of mahazar Ex.P3.Photographs were taken through P.W.3 and the same were marked asM.O.13 series. Thereafter, the Investigating Officer conductedinquest on the dead body and prepared inquest report Ex.P23 in thepresence of witnesses and sent the dead body through P.W.13 for thepurpose of post-mortem.(vi) P.W.12 Doctor Edwin Joe conducted post-mortem on thedead body and gave post-mortem Certificate Ex.P13 and final opinionEx.P15, where he opined that the deceased would appear to have diedof shock and haemorrhage due to multiple injuries sustained by him.(vii) Pending investigation, the Investigating Officerarrested the accused on 2.7.2006 at about 6.00 a.m. He voluntarilycame forward to give confession statement, which was recorded in thepresence 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.10blood stained shirt, M.O.11 pant and M.O.12 blood stained knife andthe same were recovered in the presence of witnesses under the coverof mahazar and the same were marked as Ex.P5 and P6. The accused wassent for judicial remand.(viii) Thereafter, all the material objects were subjectedto chemical analysis. Chemical analysis report and Serologicalreports Ex.P10 and P11 were received by the Judicial Magistrate CourtNo.2, Coimbatore. At the time of investigation, near the dead body,a diary was actually recovered by the Investigating Officer. Onrequisition, the admitted writing of the accused found in Ex.P7 andthe diary were sent to the hand-writing expert through the Court.The Expert's opinion is marked as Ex.P17, wherein he has opined thatthe writings that were found in diary was that of the accused . (ix) The Investigating Officer took up furtherinvestigation, examined the witnesses and recorded their statements.On completion of investigation, final report is filed against theaccused. 3. The case was committed to the Court of Sessions andnecessary charges were framed against the accused. In order tosubstantiate its case, the prosecution examined P.Ws.1 to 17and relied on Exs.P1 to P23 and also relied on M.Os.1 to 13. Oncompletion of examination of witnesses on the side of theprosecution, when the accused was questioned under Section 313 of theCriminal Procedure Code, he denied them as false. No defencewitness was examined.4. The Trial Court, after hearing the arguments advanced byeither side and scrutinised the materials available on record, foundthe accused guilty under Section 302 I.P.C. and awarded with thepunishment of life imprisonment together with fine of Rs.1,000/- indefault to undergo Simple Imprisonment for one year. Hence thisappeal is filed at the instance of the appellants.5. Advancing arguments on behalf of the appellants, learnedcounsel would submit the following submissions:-(i) In the instant case, the prosecution had no directevidence to offer. It rests on circumstantial evidence. But, theprosecution has not placed necessary circumstances in order to bringhome the guilt of the accused. The evidence given by the prosecutionwitnesses would show that there were quarrel between the accused andthe deceased from 25.6.2006 to 29.6.2006. The last seen theory wasspoken to by P.W.4. https://hcservices.ecourts.gov.in/hcservices/ (ii) According to P.W.4, he found the deceased in thecompany of the accused at about 7.15 p.m. when he was standing nearthe auto opposite to liquor shop. He found both the accused and thedeceased along with one Iyyappan, who were standing in front of theliquor shop. The said Iyyappan was not examined in support of theprosecution case. In so far as P.W.4 is concerned, he has statedthat he found the deceased with the company of the accused at 7.15p.m. But the occurrence had taken place during night hours, that toonear railway track. (iii) P.W.4 has seen both the deceased and the accused infront of the liquor shop, which is away from the railway track, wherethe dead body of the deceased was found by P.W.1. Thus, the evidenceof P.W.4 in no way connect the accused with the crime and it cannotbe said that the last seen theory was by P.W.4. Except thisevidence, the prosecution had no further evidence to offer. (iv) The recovery of blood stained shirt, pant and knifewere all further development by the prosecution. The case of theprosecution in respect of arrest and recovery of M.Os. was actuallyshaking and therefore, the Trial Court should not have believed theevidence relied on by the prosecution.(v) The added circumstance is the recovery of diary. Thereis actually no proof that it was that of the accused. Theprosecution had no evidence to offer at all. The Trial Court hadtaken erroneous view and was carried away by the fact that there wasquarrel for few days prior to the date of occurrence between theaccused and the deceased and thus on the evidence of P.W.4, which wasreally unbelievable, found the accused guilty and hence, benefit ofdoubt has to be given to the accused.(vi) Added further the learned counsel in his second line ofargument that even as per the prosecution case, they had quarrelduring night hours of 29.6.2006 and the occurrence took place in theearly morning of 30.6.2006 and there were occasions in which thedeceased talked ill of the mother of the accused, touching herchastity and it is quite natural that due to sudden provocation, theoccurrence is said to have taken place. Even as per the evidence,the accused and the deceased were found quarreling, which continuedfor number of days, which actually would have been the reason whichcompelled the accused to act so and the said act of the accusedcannot be said to be pre-determined or with an intention to causedeath of the deceased. It has got to be considered by this Courtthat it would not attract the penal provisions of murder. 6. This Court heard the learned Additional Public Prosecutoron the above contentions. https://hcservices.ecourts.gov.in/hcservices/

7. The Court paid its anxious consideration on thesubmissions made by either side. It is not in controvery that oneRaja was done to death and his dead body was found near the railwaytrack at the time and place of occurrence as put forth by theprosecution. On the complaint given by P.W.1, the investigators,after registration of the case and preparation of First InformationReport., took up investigation. Following the inquest made by theInvestigating Officer, the dead body was subjected to post-mortem byP.W.12 Doctor, who has given his categorical opinion before the Courtas a witness and also through his post-mortem Certificate that thesaid Raja would appear to have died out of shock and hemmorhage anddue to multiple injuries sustained by him and this fact was neverdisputed by the accused at any point of time. Hence, there is noimpediment for this Court to accept the same as put forth by theprosecution.8. In order to substantiate the case that it was theaccused, who stabbed the deceased, by causing several injuriesthrough out his body and caused his death, the prosecution had nodirect evidence to offer, but it rests exclusively on circumstantialevidence. In the case of circumstantial evidence, the Court ismindful of caution to the ruling of the Apex Court and also settledprinciples of law that in a case, where the prosecution rests oncircumstantial evidence, the same must constitute confidence in themind of the Court that the circumstances, which stood against theaccused, would point out the hypothesis that except the accused, noone could have committed the offence. In the instant case, the Courtis fully satisfied that the accused has only committed the offence. 9. From the perusal of the evidence, the last seen theorywas 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 ofliquor shop at 7th Cross Street, Gandhipuram, Coimbatore and P.W.4 hadstated that at that time, they were actually quarreling with eachother. Following the said quarrel, the occurrence had taken placewithin few hours. It is also true that the said Iyyappan who wasfound with the deceased and the accused was not examined, but P.W.4has categorically stated he was an auto driver and he saw thedeceased, accused and Iyyappan were standing in front of the liquorshop. To reject his evidence, no sufficient material was broughtforth by the accused. 10. Apart from this, near the dead body, a diary wasactually recovered by the Investigating Officer at the time ofinvestigation and the same was placed before the Court immediatelyand admittedly, the hand-writing of the accused was received and theywere actually sent to the hand-writing expert and on examination, hehas given a report Ex.P17 that the hand-writing received from theaccused 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 theaccused to explain the same. But, he had no explanation to offer.When the prosecution was able to prove that the diary was that of theaccused, which was found near the dead body, so long as the accusedhad no explanation to offer, it would be quite clear that thisstrong circumstance would link the accused to the crime.11. Yet another circumstance, which stood against theappellant/accused was the recovery of M.O.10 shirt, M.O.11 pant andM.O.12 knife consequent upon the confessional statement given by theaccused and recorded by the Investigating Officer in the presence ofthe witnesses and all these M.Os. were subjected to chemicalanalysis. On a perusal of chemical analysis report, it is quite clearthat the blood stain found in these M.Os. were tallied with that ofthe deceased and this evidence remained unshaken. All would clearlyindicate the fact that it was no one else, except theaccused/appellant has committed the crime. Hence the contentionsput forth by the learned counsel for the appellant in this regard donot carry any merit whatsoever and they are liable to be rejected andaccordingly they are rejected. In the considered opinion of theCourt, it was the accused, who has committed the death of thedeceased at the time and place of occurrence as put forth by theprosecution.12. Coming to the second line of argument that the act ofthe accused would not attract the penal provisions of murder, theCourt is able to see some force in the contention of the learnedcounsel for the appellant. From the evidence of P.Ws.3 and 4, it isquite clear that for a few days i.e. from 25.6.2006 to 29.6.2006, theaccused and the deceased had continuous quarrel then and there. Atone point of time, the deceased had spoken ill of the mother of theaccused touching her chastity, which lingered the mind of theaccused. Even as per the evidence, they had quarrel on 29.6.2006 atabout 7.15 p.m. in front of the liquor shop. It is quite naturalthat when the chastity of the mother was being talked, no personwould tolerate the same. In the instant case, the evidence isavailable before the Court that the deceased had talked ill of themother of the accused, touching her chastity, which lingered the mindof the accused and hence the occurrence had taken place. It is alsobrought to the notice of the Court that at the time of occurrence,the appellant was 19 years old. Under the circumstances, the act ofthe accused, in the considered opinion of the Court, would notattract the penal provisions of murder, but it would attract thepenal provision of section 304(II) I.P.C. and awarding punishment of5 years R.I would meet the ends of justice.13. Accordingly, the conviction of the sentence imposed onthe appellant under section 302 I.P.C. alone are modified and insteadthe 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 bythe appellant is ordered to be given set off. The fine and defaultsentence imposed by the trial court under Section 302 IPC will holdgood. With the above modification in conviction and sentence, thiscriminal appeal is dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Judicial Magistrate No.2, Coimbatore. 2. The Judicial Magistrate No.2, Coimbatore through the Chief Judicial Magistrate Coimbatore.3.The Additional District andSessions 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, Coimbatore7.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.24569Copy to:The Section Officer,Criminal Section, High Court, Madras. Crl.A. No.528 of 2008CU(CO)SRA(14/07/2009)