IMPORTANT POINT
Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

Headnote:Indian Penal Code, 1860 – Section 302 – Prosecution of appellant along with co accused for causing death of deceased by assaulting him with a handle of soil cutter –Conviction by Trial Court – Appeal – High Court while acquitting co accused person altered conviction of appellant from offence punishable under Section 302 to Section 341 Part I IPC – Appeal – Evidence of prosecution witness PW7 held clear and cogent – His presence at the spot had been established – He used to have business transactions with deceased – PW7 stated about appellant holding a handle of soil cutter – Though deceased and appellant were engaged in exchange of hot words, that could not have given an impression to PW – 7 that accused would take the life of deceased – Hence , the fact that he left the place on being told by the deceased to do so could not be a ground to dis believe his evidence – PW7 had seen the deceased and accused engaged in wordy tussle around 9.00 p.m – PW – 1, wife of deceased found his dead body at about 9.30 p.m. – The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen was not very large – Admittedly, bone of contention between deceased and the accused was non payment of commission on account of which they were quarreling – Trial Court and High Court rightly held appellant to be author of crime – No infirmity found in the conclusion of the High Court to warrant interference – Appeal dismissed. (Paras 16 & 17)
       Facts of the Case :
        1. Appellant along with co accused was prosecuted herein in the instant case for causing death of deceased by assaulting him with a handle of soil cutter. Trial Court convicted accused persons. On Appeal,High Court while acquitting co accused person altered conviction of appellant from offence punishable under Section 302 to Section 341 Part I IPC.
        2. Present appeal has been filed against said order of High Court.
       Findings of the Court :
        Evidence of prosecution witness PW7 was held to be clear and cogent. His presence at the spot had been established. He used to have business transactions with deceased.PW7 stated about appellant holding a handle of soil cutter. Though deceased and appellant were engaged in exchange of hot words, that could not have given an impression to PW-7 that accused would take the life of deceased. Hence , the fact that he left the place on being told by the deceased to do so could not be a ground to dis-believe his evidence. PW7 had seen the deceased and accused engaged in wordy tussle around 9.00 p.m. PW-1, wife of deceased found his dead body at about 9.30 p.m.. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen was not very large. Admittedly, bone of contention between deceased and the accused was non payment of commission on account of which they were quarreling. Trial Court and High Court rightly held appellant to be author of crime. No infirmity was found in the conclusion of the High Court to warrant interference.
       Result : Appeal dismissed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court altering the conviction of the appellant from offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) to Section 341 Part I IPC and sentencing him to undergo rigorous imprisonment for seven years.

3. By the common judgment two Criminal Appeals were disposed of. Appeal filed by K. Periyapandian, the co-accused, was allowed and he was acquitted.

4. Background facts in a nutshell are as follows:

PW-1 is the wife of Virupachi Gounder @ Palanichami Gounder (hereinafter referred to as the ‘deceased’) and PWs 3 and 4 are the sons of the deceased. PWs 3 and 4 were living in Virupachi. PW-1 and the deceased were living in Balassamudhram. The deceased was doing money lending business and accused Nos. 1 and 2 were actually working as brokers for commission under the deceased and they were aggrieved that proper commission was not paid to them. The accused complained to P.Ws.3 and 4 about the conduct of the deceased and in turn P.Ws.3 and 4 have informed P.W.1 that their father should take care since both the accused might do mischief.

While the matter stood thus, P.W.7, who had got financial transactions with the deceased, on the date of occurrence, i.e. 05.04.2005, went to Balasamudhram to get some amount from the deceased, got down from the bus, went to the nearby tea shop and enquired about the deceased. He was informed that the deceased, along with both the accused, was proceeding to his place and when P.W.7 went over there he found accused Nos.1 and 2 and the deceased were quarreling over the payment of commission and at that time P.W.7 was asked by the deceased what was the reason for his visit. P.W.7 answered that he had come to get some money and P.W.7 was informed by the deceased that he had no money and he was asked to come after four days and P.W.7 in turn returned leaving the deceased and accused 1 and 2 there.

Till 9.00 p.m. on 05.04.2005 the deceased did not return home and hence at about 9.30 p.m. P.W.1 went in search of her husband and she found at the place of occurrence the dead body of her husband. Immediately she informed to P.W.2, who in turn informed to P.Ws.3 and 4 who, also came there and saw the dead body. Thereafter, P.W.1 proceeded to the Police Station, gave a complaint, (which is marked as Ex.P-1) to P.W.13, the Head Constable, at about 4.00 a.m. on 06.04.2005. On the strength of Ex.P-1, P.W.13 registered a case in Crime No.293/2005 under Section 302 IPC and prepared Ex.P-12, the First Information Report and the same was despatched to the Court through PW-11, the Head Constable.

The Inspector of Police (PW-15) received the copy of the FIR, proceeded to the place of occurrence, made an observation in the presence of witnesses and prepared Ex.P-5, the observation mahazar and also drew Ex.P-17, the rough sketch. He caused the place of occurrence to be photographed in different angles by P.W.8, the photographer and Ex.P-2 series are the photographs and their negatives. He recovered M.O.1, the torch light, M.O.2, the umbrella, M.O.3, the bloodstained dhoti, M.O.4, the bloodstained Shawl, M.O.5, the bloodstained earth and M.O.6, the sample earth from the place of occurrence under a cover of mahazar, attested by P.W.10 and another, marked as Ex.P-6. Thereafter, he conducted inquest on the body of the deceased between 7.30 am. and 9.30 am. in the presence of panchayatdars and witnesses and prepared Ex.P-18, the inquest report.

Thereafter, he sent the body for the purpose of autopsy through P.W.12, the Head Constable.

The doctor (PW-9) attached to Government Hospital, Palani, on receipt of Ex.P-3, the requisition, from the Investigator conducted postmortem on the body of the deceased and gave Ex.P-4, the postmortem certificate, opining that the deceased appeared to have died of shock and haemorrhage due to head injury, 14 to 18 hours prior to a

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2009 Supreme(SC) 318

2009(2) Supreme 65SUPREME COURT OF INDIADr. Arijit Pasayat, Dr. Mukundakam Sharma and H.L. Dattu, JJ.Raju — AppellantversusThe State by Inspector of Police — RespondentCriminal Appeal No. 334 of 2009(Arising out of SLP (Crl.) No.4467 of 2008)Decided on : 19-02-2009

IMPORTANT POINT Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

Cases Referred (14)

2009(2) Supreme 65
SUPREME COURT OF INDIA
Dr. Arijit Pasayat, Dr. Mukundakam Sharma and H.L. Dattu, JJ.
Raju — Appellant
versus
The State by Inspector of Police — Respondent
Criminal Appeal No. 334 of 2009
(Arising out of SLP (Crl.) No.4467 of 2008)
Decided on : 19-02-2009

IMPORTANT POINT
Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.