Eswaran alias Shanmugavel vs State

V. Perlya Karuppiah, J.—This appeal is directed against the judgment of conviction and sentence passed by the lower court u/s 302 I.P.C

against the accused in S.C. No. 128/2008 dated 15.04.2009.

The case of the prosecution in brief would be as follows:

The deceased Mani was having illicit connection with the witness Rajammal and the wife and children of the deceased Mani were ekking out their

livelihood in New Delhi by doing coolie work. On 09.02.2008 at about 07.30 p.m. the deceased Mani and Rajammal had gone to the liquor shop

at Kalingarayanpalayam for consuming liquor and since there was no money with the deceased Mani he approached the accused and according to

the wish of the accused the witness Rajammal had agreed to have illicit intercourse with the said accused and for that they had gone near Chithode

Periyar Nagar cremation ground and at about 10.00 p.m. the deceased Mani demanded money from the accused for having such sexual

relationship with Rajammal and for that the accused had not paid immediately and the deceased Mani had taken the stone and attacked on the left

side chest of the accused. Infuriated with the said action of the deceased Mani, the accused had pushed the deceased Mani down to the ground

and had taken a big stone and hit against his head and face and thus caused injuries to him and the said Mani died due to injuries and the Rajammal

was shouting on scene of occurrence and the accused with a view to kill the said Rajammal, attacked her with the stone and had caused grievous

injuries. Thereafter, the accused escaped from the scene of occurrence. A complaint was given by the P. W. 1 and upon the complaint the

respondent police registered a case in Cr. No. 57/2008 and investigated the case and filed charge sheet against the accused before the

Jurisdictional Magistrate and after going through the papers, procedurally it was committed to the Court of Sessions and the Principal Sessions

Judge, Erode has taken the case on file of S.C. No. 128/2008 and made over the said case to Additional District and Sessions Judge (Fast Track

Court No. 1) for disposal.

Prosecution had examined 19 witnesses and 25 documents and produced 29 material objects in order to substantiate the case of the

prosecution.

Case of the prosecution as spoken by the witnesses of the prosecution would be as follows:

On 09.02.2008 when P.W.2 was in his bunk shop and P.W.3 was with him and they heard some noise from the near by channel running from

East Bhavani irrigation channel and immediately they informed to P.W.1 and P.W.5 through telephone and they came to the bunk shop belonging

to P.W.2 and when they went towards the direction of the noise they could reach the land belonging to P.W.5 situated on the southern side of the

bunk shop of P.W.2. They saw the injured witness Rajammal was lying nude with injuries and by her side a dead body of a male was found by

them. Further they found a black bag, inskirt, saree belonging to the said Rajammal and some other material objects. Seeing the said situation

P.W.1, P.W.2 and P.W.5 had informed P.W.3 to give complaint to the police and since the injured witness Rajammal was found nude the

witnesses had taken the saree nearby, and covered her and thereafter they arranged for treatment of the said Rajammal. The said witnesses P.W.1

to P.W.5 and one Mathalaimuthu had seen the deceased person with the black bag, found in the place of occurrence, accompanied by the injured

woman who passed them at about 09.30 p.m on that day. P.W.3 had given complaint Ex.P.1 to the Chithode police station by 11.30 p.m and the

Sub-Inspector of Police P.W.17 received the same and registered the case in Cr. No. 57/2008 u/s 302 and 307 I.P.C. Immediately he has

forwarded the printed F.I.R. - Ex.P.2 to the Judicial Magistrate III Erode by 01.00 a.m. on 10.02.2008 through P.W.15. P.W.19- Investigator

had proceeded to the place of occurrence by 01.00 a.m. on 10.02.2008 with photographer and P.W.7- V.A.O of Ellamalai and his assistant and

had prepared Observation Mahazar and Ex.P.2 and Rough Sketch Ex.P.24 in the presence of the witnesses. Photographer took Ex.P.24 series

photographs. P.W.19, the Investigator had also seized the blood stained inskirt -M.O.1, blood stained white top -M.O.2, blood stained stones-

M.O.3, blue colour rubber chappal one pair M.O.4, Blue Colour Comb M.O.5, Beedi bundle (19 Nos) M.O.6, Gold filter cigarette packet with

four cigarettes M.O.7, two rose colour buttons M.O.8, 180 ml Monitor Brandy empty bottle M.O.9, black colour belt M.O.10, black colour pant

M.O.11, blood stained earth M.O.12, Sample earth M.O.13, String bag M.O.14, white shirt M.O.15, Blue colour cloth M.O.16, Towel

M.O.17, black colour Reebok bag M.O.18, cement colour half hand shirt M.O.19, a whistle containing black thread M.O.20, currency notes

containing denomination of 50 numbering 5 and 10 numbering 3 for a total sum of Rs. 280/- M.O.21 series, passport size photo of a male person

M.O.22.

The investigator P.W.19, commenced inquest by 02.30 a.m in the presence of the panchayatars and prepared inquest report Ex.P.23. After

inquest at 05.00 a.m he sent a requisition for performance of autopsy on the body of the deceased through P.W.14 Head constable to the

Government hospital. P.W.9 the Doctor had received the requisition Ex.P.7 and had performed the autopsy in between 12.00 hours and 14.00

hours on the same day on the dead body of male person and had given his opinion that the deceased would have died due to the injuries sustained

by him and profused bleeding caused and the shock sustained due to the injuries and had given Ex.P.8 - Post Mortem Certificate. The dead body

of the deceased person was kept in mortuary in order to get identified. The injured witness Rajammal was given first aid at Bhavani hospital and

thereafter she was admitted as in patient at Erode Government hospital at 10.02.2008 and she took treatment till 07.03.2008. Investigator had

examined and found the deceased person was one Mani and intimation was sent to his brother P.W.6 and he had identified the dead body belongs

to his brother Mani. The injured witness Rajammal was given treatment by P.W.8-Doctor and she had issued a wound certificate of witness

Rajammal Ex.P.6. Subsequently she was sent to treatment to Bhavani Government hospital A.R. copy was produced as Ex.P.5 and her wound

certificate issued by Government hospital Bhavani is Ex.P.6. On the date of occurrence when, P.W.4 had returned by 10.00 p.m after meeting his

friend Murugan near the place of occurrence and he saw the accused was walking from northern side wearing yellow shirt and without wearing any

pant and was going towards south. The investigator had recorded evidence from the witnesses on 10.02.2008 and thereafter examined the injured

witness Rajammal at Government hospital and recorded her statement. On 13.02.2008, on information, he summoned V.A.O of Suryampalayam.

P.W.10 and his sister and asked them to come near Kalingarayan vaikkal perumal malai by 01.00 p.m and there he arrested the accused in the

presence of the said witnesses and he had recorded the confession statement given by the accused and in the said confession statement he had

narrated the place of occurrence and had also agreed to discover the material objects as he narrated in Ex.P.9. The confession statement leading

to recovery and accordingly he had taken to Ponnavarai Medu, Thaniya gounder forest and had taken away the blood stained orange colour and

cement colour check pattern half hand shirt M.0.23 and it was seized by the investigator under the cover of Mahazar Ex.P.10 in the presence of

witnesses. Since the accused was having some pain in his chest, he took him to the Doctor P.W.13 and he was examined by the Doctor and the

wound certificate issued by the Doctor Ex.P.14 was obtained by him. Thereafter, the accused was remanded to judicial custody. The investigator

has also given a requisition to Chief Judicial Magistrate for conducting Test Identification Parade and accordingly on 22.02.2008, Judicial

Magistrate I had conducted the Test Identification Parade with the accused. P.W.1 and P.W.2 had identified the accused in the Test Identification

Parade and the Judicial Magistrate I, Erode P.W.12 had prepared Test Identification Report Ex.P.13. Investigator had also sent a requisition for

sending the material objects collected by him and the properties taken from the deceased body of the deceased for chemical examination in

Ex.P.16 and accordingly it was forwarded and chemical and serology report had been obtained and they are Ex.P.18 and Ex.P.19 and Ex.P.21

respectively. The finger prints obtained from the accused prior to his remand was sent to finger print expert P.W.18 and had compared the finger

prints with the finger prints of various cases and he found that the accused was found in connection with 47 cases and was convicted. The report

submitted by P.W. 18, Ex.P.23 would disclose the criminality of the accused. The investigator had examined the official witnesses and recorded

their statement and had completed the investigation.

The incriminating circumstances found from the evidence of prosecution witnesses were read over to the accused and when the accused was

questioned u/s 313 Cr.P.C he would deny the evidence of the prosecution witness as false and he had examined two witnesses D.W.1 and D.W.2

on his side and had produced Ex.D1 and D2.

Heard Mr.I.C. Vasudevan, learned Counsel for the appellant and Mr. Babu Muthu Meeran, the learned Additional Public Prosecutor.

Learned Counsel for the appellant/accused would submit in his argument that the lower court had erroneously come to a conclusion and entered

conviction against the accused without appreciating the testimony of the prosecution witnesses and defence witnesses. The lower court failed to

find that the main witness who is to speak about the occurrence namely Rajammal was not examined on the side of the prosecution. He would

further submit that the said Rajammal was stated to be a injured eye witness and she would be the best evidence for proving the prosecution story,

but the said witness was not examined in court nor any attempt was made to bring her to court to depose. The non examination of ocular evidence

(i.e.) Rajammal is certainly fatal to the prosecution case. Even if the said evidence of Rajammal is found to be not necessary, the non examination

of said injured witness Rajammal would give rise to suspicion about the involvement of the accused in the occurrence.

He would further submit in his argument that the prosecution story that on 09.02.2008 at about 07.00 p.m, the deceased Mani approached the

appellant for money at the instance of the said Rajammal and both of them purchased liquor and meals for the said Rajammal and the accused

went along with her and to the said place of occurrence the said Rajammal removed her dress and the deceased demanded money from the

accused and he did not pay the money and therefore the deceased attacked the appellant and in turn the accused had attacked the said Mani with

stone and pushed him down and assaulted him with stone and caused his death. The further story of prosecution would be that the said Rajammal

had made hue and cry and therefore the appellant assaulted her also and caused injuries and on hearing the noise raised by Rajammal the witnesses

came there and admitted the said Rajammal in the hospital and lodged the said complaint.

He would further submit that in the given circumstance the evidence of the injured Rajammal is inevitable and the absence of the evidence of

Rajammal would lead to the suspicion regarding the occurrence itself and the involvement of the appellant. He would further submit that the

charges framed against the accused u/s 307 I.P.C was found not proved and the said finding should have been followed by the lower court in

acquitting the accused u/s 302 I.P.C also. He would again submit in his argument that the circumstantial evidence adduced by prosecution was in

support of the injured eye witness Rajammal only and it cannot complete with the links to form a chain as the injured eye witness was not examined

before the court. He would also submit that even the circumstantial evidence adduced on the side of the prosecution was not complete due to

various discrepancies regarding recovery of material objects from the accused/appellant and the time of occurrence spoken by the witness.

Available circumstantial evidence are not sufficient to hold the accused to find guilty u/s 302 I.P.C. He would further submit that the lower court

had erroneously convicted the appellant on the circumstantial evidence adduced by the prosecution which was not sufficient to convict the accused

u/s 302 I.P.C and therefore the judgment of conviction and sentence passed by the lower court should have been set aside and the accused be

acquitted.

However the learned Counsel for the appellant/accused would submit in his argument that in the given case even if the prosecution case is

found to be true the circumstances will not indicate any commission of murder by the appellant/accused against the deceased Mani. As per

prosecution story, the appellant had also been injured by the alleged assault by the deceased Mani for seeking money to have sexual intercourse

with the said Rajammal and therefore it should have been considered that the said act of the accused was committed on sudden provocation

caused by the deceased Mani against the accused. Therefore, he would submit in his argument that the alleged crime said to have been committed

by the accused would not attract the penal provision u/s 302 I.P.C but would squarely attract the definition of 304 Part I I.P.C only. He would

further request the, court, in his cumulative argument, to set aside the judgment of conviction and sentence passed by the lower court.

Having heard the arguments of the learned Additional Public Prosecutor in answer to the arguments of the learned Counsel for the appellant, he

would state that the witness Rajammal was no doubt not examined on the side of the prosecution and even without her evidence the prosecution

had come forward with the circumstantial evidence with the recovery from the accused and the witnesses who spoke about the last seen theory

and the identification of the accused by the witnesses in the Test Identification Parade and the injuries caused to the accused in the incident would

go a long way to show that the evidence produced on the side of the prosecution would complete the chain of circumstantial evidence and the

ocular evidence of the another victim Rajammal was not necessary for proving the guilt committed by the accused against the deceased person,

Mani. He would further submit that the absence of evidence Rajammal would only show the failure to prove the case of causing hurt and offence

against the said Rajammal u/s 307 I.P.C and it would not in anyway affect the case of the crime committed by the accused against the deceased

Mani. He would further submit that the judgment of the lower court may be confirmed and he therefore prayed for the dismissal of the appeal.

We have given anxious thoughts to the arguments advanced on either side. According to the prosecution case, on 09.02.2008 at about 10.00

p.m the accused caused the death of the deceased Mani at the place near East Bhavani irrigation channel adjacent to the cremation ground of

Periyar nagar. The death of deceased Mani was said to have been caused by the accused in the said incident. The prosecution had examined the

Doctor P.W.9 who would speak about the autopsy done by him on 10.02.2008 by 08.50 a.m on the dead body of the deceased Mani. He had

given his opinion that the death would have been caused due to injury sustained by him in his head and due to the profused bleeding, from the said

injury and he had also suggested that the death would have occurred 12 to 14 hours prior to the time of autopsy. On a careful perusal of Ex.P.8

the Post Mortem Certificate we could expect the evidence of P.W.9 as to the death of the deceased person. Therefore, it could be seen that the

death of the deceased person was not natural but it was caused by the injuries sustained by him in the incident which took place in or about 12 to

14 hours prior to autopsy. Evidence of P.W.6 would go to show that the deceased Mani was his younger brother and wife and children of Mani

were working in New Delhi and the deceased person was roaming with one Rajammal.

According to the learned Additional Public Prosecutor that non examination of the witness namely the injured eye witness Rajammal would not

be fatal to the case since the case of prosecution is established through circumstantial evidence. Whether such non examination of witness by the

prosecution would invite acquittal of the charges of murder framed against the accused would be the question to be decided.

P.Ws.1 to 5 were examined by the prosecution to speak about the lodging of complaint and the last seen of the deceased and the injured

person with the accused and the return of the accused from the place of occurrence. Accordingly P.W.1 and P.W.2 would speak to the effect that

on 09.02.2008, he went to the place of occurrence along with P.W.3 to P.W.5. Pursuing the voice of a woman seeking for help and P.W. 1 to

P.W.5 had searched with torch light towards the direction of the voice and they could see the dead body of the deceased person and the injured

woman without any dress and other material objects and they gave complaint immediately to the police through P.W.3. The police immediately

lodged the complaint in Ex.P.22 and had taken up the investigation. The investigator had immediately proceeded with the investigation and had sent

the F.I.R and other documents to the court in time and he had applied for chemical examination of the material objects seized from the scene of

occurrence.

The evidence of P.W.1 and P.W.2 would go to show that on 09.02.2008 at about 09.30 p.m they have seen the deceased Mani and the

injured Rajammal going along with the accused with a black coloured bag with him near the Periyar Nagar bus stop. P.W.2 had seen them when

they crossed his bunk shop. Their evidence can be relied upon since they identified the dead body belongs to the man who was with the woman

Rajammal and the accused was identified by them in the Test Identification Parade conducted by P.W.12. The Test Identification Parade

produced in Ex.P.13 would go to show that the witnesses P.W.1 and P.W.2 have identified the accused when he was arrested and put in judicial

custody. The said identification of the accused by P.W. 1 and P.W.2 would inspire confidence on the evidence of P.W.1 and P.W.2.

Apart from that the evidence of P.W.4 would go a long way to show that he saw the accused returning from the place of occurrence by

wearing a yellowish orange colour shirt and without wearing any dress on his lower part of the body. When he went to see his friend Murugan for

collection of money. P.W.4 had also identified the accused in the Test Identification Parade conducted by P.W.12. It was argued by the learned

Counsel for the appellant that the said witnesses were shown the photographs of the accused in the police station and therefore the Test

Identification Parade cannot be relied upon.

The said argument of the learned Counsel for the appellant cannot be sustained because the jurisdictional Magistrate P.W.12 had conducted

the Test Identification Report in a procedural manner and P.Ws.1, 2 and P.W.4 had identified the accused perfectly. Apart from that the accused

was arrested by the investigator (P.W.19) on 13.02.2008 in the presence of V.A.O, - P.W. 10 and had recorded the confession leading to

recovery in Ex.P.9 and the orange colour shirt M.0.23 was seized by him in pursuance of the confession leading to recovery in Ex.P.9 and the

seizure mahazar is Ex.P.10. Chemical analysis and the serology report obtained from the blood contained in M.0.23 was said to be a human blood

without any grouping of blood. However the slippers left in the scene of occurrence had shown the origin of the blood as human and the group was

''O''.

18A. Apart from that the accused was subjected to medical examination by P.W.13 since he complained chest pain immediately after his arrest.

The evidence of doctor P.W.13 would go to show that the accused was treated by him for chest pain and the wound certificate of the accused

was issued to him in Ex.P.14. Therefore, we could see that the arrest and recovery through the confession leading to recovery as spoken by

P.W.10 is affirmed by the evidence of the doctor. The evidence of P.Ws.1, 2 and P.W.4 identifying the accused in the jail on 22.02.2008 would

go to show that their evidence with regard to seeing the accused along with the deceased Mani and the injured woman Rajammal on 09.02.2008

at 09.00 p.m. cannot be rejected. The evidence of P.W.4 to the effect that the accused was running with yellow shirt M.0.23 and without any

dress below his hip, lead to the acceptance of the last seen theory. The accused, who was found by P.W. 1 and P.W.2 and P.W.4 near the place

of occurrence on the fateful night at the time when the occurrence had taken place, has to explain the reason for his presence at that time in the said

area. When there is no reason to disbelieve the evidence of P.Ws.1, 2 and P.W.4 and the materials also supported their evidence produced by the

prosecution. Non-examination of the injured ocular witness becomes immaterial to come to a conclusion regarding the participation of the accused

in the crime. Therefore, we are of the considered opinion that the prosecution has completed the chain of the circumstantial evidence without any

snag of any of the links which lead to a conclusion that the accused had caused the death of the deceased Mani.

As far as the argument advanced by the learned Counsel for the appellant that the prosecution story as put forth would go to show that the

accused was provoked by the circumstances and the deceased Mani himself demanded money by assaulting him with the stone, had provoked him

to commit the offence and therefore, it cannot be classified as a murder. It is no doubt that the accused had also sustained some injuries as per

Ex.P.14. Case of the prosecution would go to show that when the accused and the injured witness Rajammal were undressed for having sexual

intercourse for money the deceased person Mani had demanded money from the accused and since the accused did not pay the money deceased

Mani had caused injuries with stone on the accused which infuriated the accused to cause injuries against the said Mani which lead to his death.

The said circumstances would go to show that the injury sustained by the accused on his left chest and the case of the prosecution that the demand

of money for the alleged illegal sexual intercourse had enraged the accused to sustain sudden provocation against the deceased Mani and the

accused had caused injuries to the deceased Mani only on such provocation of the said deceased Mani.

Therefore, the prosecution did not prove any enmity as envisaged in the charges framed against the accused and when there was no previous

enmity in between these two persons there could not be any understanding between the accused and the deceased person to have unlawful and

illegal sexual intercourse with the said Rajammal by the accused for money.

In the said circumstances, this Court is of the view that the offence committed by the accused against the deceased Mani would fall u/s 304,

part I, I.P.C. since it was not intentionally done but only a culpable homicide not amounting to murder.

We are therefore, of the considered opinion that the lower court ought to have convicted the accused only u/s 304, part I, I.P.C. and

accordingly it has become necessary for us to set aside the conviction and sentence passed u/s 302, I.P.C. by lower court and the accused is

convicted u/s 304, Part I, I.P.C. and sentenced to undergo rigorous imprisonment for seven years and consequently the conviction and sentence

passed by the lower court is modified to that extent.

Accordingly, the appeal is allowed in part and the conviction and sentence of life imprisonment u/s 302 by the lower court is modified into one

u/s 304, Part I, I.P.C, for which he would stand sentenced to seven years rigorous imprisonment and the period already undergone by the accused

is ordered to be set off.