BABU ALIAS CHOKKAIYAN Vs. STATE

JUDGEMENT

(1.) APPEAL filed under section 378 Cr.P.C. praying for the relief as stated below. 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: (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 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.) 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. (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.