Jenu v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937 ## CRL.A.No. 427 of 2012 ------------------------SC 133/2009 of VI ADDL.DISTRICT COURT, ERNAKULAM APPELLANT(S): ------------------------ JENU, S/O KOCHURAMAN C.NO.8034, CENTRAL PRISON, VIYYUR, THRISSUR BY ADV. REENA ABRAHAM (STATE BRIEF) RESPONDENT(S): ---------------------------- STATE OF KERALA, REP. BY SHO, KOTHAMANGALAM POLICE STATION [ CRIME NO.775 OF 2007] BY PUBLIC PROSECUTOR JASMINE V.H. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.2.2016, THE COURT ON 03-03-2016 DELIVERED THE FOLLOWING: ## **P.BHAVADASAN & RAJA VIJAYARAGHAVAN.V., JJ** - - - - - - - - - - - - - - - - - - - - Crl.A.427 of 2012 - - - - - - - - - - - - - - - - ## Dated 3[rd] March, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _Raja Vijayaraghavan.(J)._ - 1.For having committed the grossly abhorrent crime of patricide, the appellant herein was prosecuted for the offence under Section 302 of the IPC and he was found guilty of the same. He was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- with a default clause of two months under Section 302 of the IPC. - 2.The case of the prosecution, in brief, can be stated as follows: - Deceased Kochuraman, along with his wife Devaki and younger son Jenu, the appellant **Crl.A.427/12** 2 herein were residing together. On 9.8.2007 at - about 11.00 p.m, while PW1 Sandeep was asleep, he was woken up by the appellant. The appellant entered the house and informed him that he had beaten up his father and wanted PW1 to go to his house and inquire. PW1 along with two of his neighbours namely Asan @ Rajan and Shaju went to the house of the appellant. They found Devaki , the wife of the deceased, standing near the door and crying. They went inside and found the deceased lying on a cot in the rear Verandah and injuries were seen on his jaws. They realized that Kochuraman was no more. They alerted the police who came to the scene of crime. - 3.PW1 gave Ext.P1 FI statement to PW12, the Sub Inspector of police, Kothamangalam police **Crl.A.427/12** 3 station based on which Ext.P1(a) FIR was registered. 4.The Circle Inspector of police, Kothamangalam, who was examined as PW13 took over investigation of the case on 10.8.2007. He conducted inquest over the dead body of the deceased and prepared Ext.P5 report. The clothes found on the dead body were seized. MO2 series were identified as the teeth of the deceased which were found in the scene of crime. The clothes worn by the deceased were identified and marked as MO3 to 5. Thereafter, he prepared Ext.P2 scene mahazar. At 12.15 pm on the same day, the accused was arrested as is revealed from Ext.P11 arrest memo. The accused was questioned and based on the information furnished, MO1 iron rod was **Crl.A.427/12** 4 seized. Ext.P4 is the mahazar prepared evidencing the same. The clothes worn by the accused were seized as per Ext.P6 mahazar. Later, steps were taken to record the 164 statement of PW1 and 2. After completing the investigation, PW13 laid the charge before the jurisdictional Magistrate. - 5.The Court before which the final report was laid, took cognizance of the offence and finding that the offence is exclusively triable by a Court of sessions, committed the case to the Court of Sessions, Ernakulam, under Section 209 of the Cr.P.C after following the necessary procedure. The said Court made over the case to the VI Additional Sessions Judge for trial and disposal. The latter Court on receipt of records and appearance of accused before Court **Crl.A.427/12** 5 framed charge of the offence punishable under Section 302 of the IPC. - 6.To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution examined PW1 to 13 and had Exts.P1 to 14 marked. MO1 to 6(b) were produced and identified. - 7.After the close of the prosecution evidence, the accused was questioned as regards the incriminating materials arising from the prosecution evidence. He denied all the circumstances brought out in evidence. Apart from maintaining his innocence, he would state that on the date of incident at 4.30 p.m, the deceased who is his father had reached the house after consuming liquor. He was present **Crl.A.427/12** 6 at home and was watching a movie. His father inquired about his mother and he replied that she had gone to the house of Baby for work. His father asked him to call his mother. He called his mother but his mother did not come as she was not finished with her work by then. When the deceased started abusing his mother, she came home. Enraged for not obeying him, he again abused and slapped her. The accused interfered and prevented his father from manhandling his mother. His father asked him to leave the house. The accused went outside and decided to return only after his father had left. He then went for a movie which finished only at 9.30. He then boarded a bus at 10.15 p.m and got down at the Vayanasala bus stop. He had to walk a distance of 1 ½ kms to reach his house. On reaching the **Crl.A.427/12** 7 house, he called his mother. His mother came crying and when questioned, his mother did not respond. He then switched on the light and found his father lying on the bed. His repeated queries to his mother did not yield any answer. His mother kept on weeping her heart out. He then went to the house of PW1 Sandeep and requested him to take his father to the hospital. They returned back in an autoriskshaw and PW1 sought for the help of Rajan and Saravanan. When Rajan touched the hands of his father, it appeared cold. Later, police was alerted and they came to the scene and took the accused to the station. On the next day the police brought him to his house. He pleaded ignorance as to how his father had sustained the injuries. 8 ## **Crl.A.427/12** - 8.Finding that the accused could not be acquitted - u/s 232 of the Cr.P.C he was asked to enter on his defence. The defence examined DW1, the Judicial Magistrate of First Class, Kolenchery, who had recorded the 164 statement of PW1 and 2. - 9.The Court below mainly relied on the following circumstances, namely (i).extra judicial confession of the accused spoken to by PW1 (ii).false plea of alibi raised by the accused (iii). Evidence of PW6, the brother of the appellant who corroborated the extra judicial confession and (iv).subsequent conduct, came to the conclusion that the above circumstances are clinching enough to lead to the irresistible conclusion that the accused was the perpetrator of the crime and the proved **Crl.A.427/12** 9 circumstances were inconsistent with the innocence of the accused and found him guilty. He was accordingly convicted and sentenced. - 10.The said conviction and sentence are challenged in this appeal. - 11.The appeal was preferred by the appellant while he was undergoing sentence in jail and in view of the above, the registry was directed to ensure that the services of a Legal aid counsel - was made available to the appellant. Accordingly, Smt.Reena Abraham was appointed as Legal aid counsel to prosecute the appeal. - 12.Smt.Reena Abraham, the learned counsel appearing for the appellant, with all the **Crl.A.427/12** 10 vehemence at her command contended that the case is built on circumstantial evidence and the principles with reference to the case based on circumstantial evidence are well settled. If those principles are applied, it could easily be seen that the instant case does not satisfy the requirements of law. The learned counsel vehemently attacked the extra judicial confession said to have been made by the accused to PW1 and submitted that the same is vague and ambiguous and does not satisfy the requirements of law. Relying on various judgments of the Apex Court as well as this Court, the learned counsel would submit that in criminal jurisprudence extra judicial confession is a weak piece of evidence and the Court is required to ensure that the same inspires confidence and is corroborated by the other **Crl.A.427/12** 11 prosecution evidence. According to the learned counsel, if the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, the Court should not base a conviction on the same. It was highlighted that the learned trial Court had not made any endeavour to satisfy itself as regards the voluntary nature or truthfulness of the confession. The learned counsel would further contend that PW1 does not even have a consistent version as to the exact words spoken to by the appellant. 13.The learned counsel would further contend that the conclusion arrived at by the learned Sessions Judge that the defence taken by the appellant turned out to be false would 12 ## **Crl.A.427/12** constitute an additional link in the chain of circumstances is a perverse view. According to the learned counsel, it was a probable and true version and tallied with the evidence of other witnesses. It was further contended that the appellant was available in his house and was in a shell shocked state after finding his father dead in his own house. That being the case, the finding of the learned Sessions Judge that the conduct of the appellant was against normal human conduct and revealed the complicity of the accused is not a probable view. - 14.Inviting our attention to the evidence of PW1, 3 and 4 and also that of PW2, the wife of the deceased, the learned counsel pointed out that it has been the consistent version of the **Crl.A.427/12** 13 witnesses that the deceased used to behave in an inhuman manner towards PW2 and used to physically assault her in the presence of her sons. Though not in so many words, the learned counsel would contend that there is also a possibility that the gruesome act was perpetrated by some other person. It was further pointed out by referring to the evidence of doctor who conducted the autopsy that there is no whisper in his evidence that the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death. According to the learned counsel, even if the whole case of the prosecution is admitted in its entirety, it cannot be said that the injuries inflicted by the appellant were with the intention of causing death. At the most, according to the learned counsel, only **Crl.A.427/12** 14 knowledge that the injuries are likely to cause death could be attributed to the accused and therefore, the finding of the Court below that the offence attracted S.302 of the IPC is unsustainable. 15.The learned counsel went on to point out that the Court below has erred in law and on facts in holding the accused guilty without applying the relevant principles of law and the relevant test applicable to the appreciation of the case based on circumstantial evidence and the acceptance of extra judicial confession. The learned counsel finally asserted that the conviction and sentence are clearly unsustainable under law. 16.We have heard Smt.Jasmine, the learned **Crl.A.427/12** 15 Public Prosecutor, who has controverted the contentions of the learned counsel and submitted that the extra judicial confession given by the appellant along with other circumstances and his conduct would unflinchingly prove the complicity of the appellant. It was pointed out that the appellant has inflicted grave and serious injuries on his father and he cannot now be heard to say that the injuries inflicted are without the intention of causing death. - 17.Before considering the various circumstances, the first question that is to be ascertained is as regards the cause of death of deceased Kochuraman. Nobody has witnessed the incident. Ext.P5 is the inquest prepared by PW13, the Circle Inspector of police in which he **Crl.A.427/12** 16 has noted the nature of injuries sustained by the victim. PW9 had conducted autopsy over the body of the deceased and he had prepared Ext.P8 postmortem certificate. He had noted the following ante-mortem injures. _(i). Abrasion 1.5 x 0.5 cm on the back of head 7 cm above occipit and 2cm to the left of mid line with surrounding contusion 6 x 5 cm involving the whole thickness of scalp. (ii). Abrasion 1x0.5 cm on the forehead 8 cm to the right of mid line and 2 cm above eyebrow._ _(iii). Abrasion 0.8 x 0.5 cm on the forehead 6 cm above eyebrow and 4 cm to the right of mid line._ _(iv). Irregular lacerated wound 5x1 cm, oblique, bone deep on the right cheek 4cm outer to mid line and 7 cm above jaw border._ _(v). Lacerated wound 0.5 x 0.1 x 0.1 cm, 1 cm to the right of the outer end_ **Crl.A.427/12** 17 _of injury No.4._ _(vi). Lacerated wound 0.4 x 0.1 x 0.1 cm, 1.5 cm outer to injury No.4 and 0.5 cm above injury No.5_ _(vii). Lacerated wound 0.4 x 0.1 x 0.1 cm, 3 cm to the right of injury No.5_ _(viii). Irregular lacerated wound 10. x 3 cm bone deep over the jaw border. The upper and lower jaw fracture, dislocation of upper left cerine and lower left medical incisor and lower right medical incisor. One tooth brought separately. Basal fracture of right anterior cranial fossa. Thin to thick subdural hemorrhage bilaterally._ _Thin to thick suborachnoid hemorrhage over both frontal poles and right temporal pole. Brain oedematous._ _(ix). Lacerated wound 5.5 x 2 x 0.5 cm on the front of neck just to the left of mid line 10 cm below jaw border._ _(x). Multiple contused abrasion over an area 11x 5 cm on the front of neck, its left extend 3 cm to the left of mid_ **Crl.A.427/12** 18 _line and 5 cm below jaw border and right extend 2 cm below right angle of jaw._ _(xi). Abrasion 5 x 5 cm on the front of neck just to the right of mid line and 3 cm above collar bone. Flap dissection of neck was done under blood less field. Contusion of right sternomastoid muscle and strap muscles of neck under injury No.10. Fracture of body of hyoid bone. Fracture fragmentation of thyroid cartilage. The vessels and vertebrae normal._ _(xii). Abraded contusion 3.5 x 1 cm oblique on the front of chest 7 cm outer to mid line and 2 cm below collar bone._ _(xiii). Abraded contusion 4 x 1 cm oblique 1 cm below injury No.12 6 cm outer to mid line._ _(xiv). Abraded contusion 4.5 x 0.8 cm 0.2 cm below 3.5 an outer to mid line._ _(xv). Abraded contusion 3.5 x 1 cm 1.5 cm below injury No.14 3 cm outer to mid line._ **Crl.A.427/12** 19 _(xvi). Lacerated wound 1 x 0.2 x 0.2 cm on the left half of front of chest 2 cm outer to mid line and 2 cm below sternal notch with surrounding contusion._ _(xvii). Lacerated wound 1.2 x 0.2 x 0.2 cm over left collar bone 5 cm outer to mid line._ _(xviii). Contused abrasion 1 x 0.2 cm on the front of left shoulder 16 cm outer to mid line and 3 cm below top of shoulder._ _(xix). Square bracket sharped lacerated wound on the inner aspect of right fore arm 3 cm above wrist its vertical limb 2.5 cm long and other limbs 2 cm each, its open ends faced forwards._ _(xx). Ulcer 2 x 2 x 0.5 cm on the top of left foot covered with yellow pus with evidence of healing at margins._ 18.The doctor who conducted autopsy was examined as PW9. He would depose that 20 ## **Crl.A.427/12** Kochuraman had died of injuries sustained to the head and neck. It was further stated that injury No.4 to 11 are fatal injuries. When MO1 weapon was shown to PW8, he deposed that injury No.1 to 9 could be caused by the said weapon. There can be no manner of doubt that the death of Kochuraman was homicidal. - 19.The next question that arises for consideration is whether the prosecution has established that it was the accused who had inflicted the injuries which resulted in the death of Kochuraman. - 20.It has to be noticed that the case rested on circumstantial evidence and the learned Sessions Judge has relied on four circumstances to bring home the finding of 21 ## **Crl.A.427/12** - guilt against the accused. They are (i).extra judicial confession (ii). False plea of alibi (iii). abnormal conduct (iv).Evidence of PW6, the brother of the accused which corroborates the alleged extra judicial confession. Our endeavour is to consider whether the above four circumstances are proved beyond doubt and if that be the case, whether the finding of the Court below is justified. - 21.The main circumstance relied on by the prosecution is the extra judicial confession said to have been made by the accused. The learned Sessions Judge has concluded that the evidence of PW1, to whom the accused has made the extra judicial confession is reliable and the same stands corroborated by the evidence of PW3, 4 & 6. It therefore, becomes **Crl.A.427/12** 22 necessary to discuss in minute detail, the evidence of the aforesaid witnesses and also that of PW2 , the wife of the deceased. - 22.PW1 is a neighbour of the accused. He speaks about the acquaintance he had with the accused who had been working at Trivandrum. On 9.8.2007 at 10.00 p.m, the accused came to his house while he was asleep and knocked on his door. His mother opened the door and the accused was found drenched in rain. He informed PW1 that he had beaten up the deceased and wanted PW1 to go to his house and enquire. PW1 called Rajan and Shaji, who are his neighbors for assistance. They went to the house of the accused. The mother of the accused, Devaki was found weeping and standing outside the house. They switched on 23 ## **Crl.A.427/12** - the lights inside the house and they found the deceased lying dead on the varanda on the back side of the house. The accused came thereafter. He further stated that the deceased was a drunkard who used to pick up fights. Though PW1 was cross examined in detail , his assertion in evidence about the extra judicial confession made by the accused stands unchallenged . - 23.PW2 is the mother of the accused and the wife of the deceased. She deposed that her husband is a daily labourer and she along with the accused and the deceased were residing in the same house. She stated that she is not aware as to how her husband had met with his death. However, she stated that she had gone to the neighboring house of Baby on the date 24 ## **Crl.A.427/12** of incident and at 4.00 p.m her husband had come home in an inebriated stage. The deceased wanted PW2 to come home from her place of work but she did not accede to his demand as she had not finished her work. A fight broke out between PW2 and the deceased. At 5.00 p.m, she came to her house and her husband abused her. At 9.00 p.m her son came home. The accused went and looked at her husband and then he left the house. She did not see her son thereafter. A short while later, her neighbors had come home and informed her that her husband was lying dead. She also stated that her husband was a drunkard and was in the habit of hurting women. She did not support the case of the prosecution and therefore, she was confronted with her previous statements in writing and the **Crl.A.427/12** 25 same was marked as Ext.P2. 24.PW3 is also a neighbor and according to him, he came to know of the incident at 9.00 p.m on 9.8.2007. He was called by PW1 Sandeep and one Rajeevan. He was informed that the deceased was assaulted by the accused and that a fight was going on in their house. He went along with the others. When he reached the house Selvaraj, Sandeep and Shaji were seen there. The wife of the deceased was not in the house. He found the deceased lying dead on the back varanda of the house. The accused was also not found there and he was later found coming from the canal bund area. He further stated that the accused as well as the deceased used to drink alcohol and the accused informed him and others that he was the one **Crl.A.427/12** 26 who had assaulted his father. Immediately, Shaju and Binu Cherian went to the police station to inform them about the incident. He also deposed that he was an attester to Ext.P3 scene mahazar. 25.PW4 is running an engineering workshop and is residing near to the house of the accused. At 8.00 p.m, on the date of occurrence, he reached his house after work. At about 9.30 p.m, Selvaraj and the son Saravanan came to his house and informed him that some incident had taken place at Kochuraman's house. They went together and found PW2 standing outside the house and weeping. They went inside the house and found the deceased lying dead on the varanda on the rear side of the house. After confirming his death, he went outside and **Crl.A.427/12** 27 called the ward counselor and the police over phone. A short while later, the accused came home. He further stated that he had stood as an attester to Ext.P4 mahazar prepared at the time of seizing MO1 weapon. - 26.PW6 is the elder brother of the accused. He deposed that on the date of incident at midnight, he reached his house on getting news of the death of his father. He is residing at Ernakulam. On his enquiry, he was told that a fight had broken out between his father and the accused. He would also say that the neighbors who had assembled there had informed him that it was the accused who had inflicted injuries on his father. His mother also had informed him that the accused and his father had fought with each other. **Crl.A.427/12** 28 27.The analysis of the evidence of PW1, 3, 4 & 6 would reveal that immediately after the incident, the accused went to the house of PW1 and informed him about the fact that he had assaulted his father and that he was lying inside his house. It was PW1 who had alerted his neighbours and had gone to the house of the deceased to enquire. PW1 would say in unequivocal terms that it was the accused who had informed him that he himself had inflicted injuries on his father. It is true that the evidence of DW1, the Judicial Magistrate of First Class, Kolenchery, who recorded the 164 statement of PW1, would not reveal that the accused had given an extra judicial confession to PW1. But at the same time, in the FI statement given by PW1, hours after the **Crl.A.427/12** 29 incident the said fact is seen noted. The 164 statement was recorded only on 20.9.2007 whereas the FI statement was furnished on 9.8.2007. As rightly held by the learned Trial Judge, PW1 would have had a change of mind and that would have been the reason for not mentioning the said fact to the learned Magistrate. The 164 statement of the witness has neither been produced nor has the same been marked. Though PW1 was cross examined at length, we do not see any serious challenge with regard to the evidence tendered by him that the accused had immediately after the incident gave a statement in which he had confessed that he had assaulted his father. The FI statement was recorded at 11.00 p.m and the same has reached the Court at 10.30 a.m on the next day. PW3 would also state in **Crl.A.427/12** 30 evidence that the accused had told him when he had reached his house that it was he who had assaulted the deceased. PW4 & 6 does not speak about this aspect. They only say that they were told by others who had assembled there, that it was the accused who had assaulted the deceased. - 28.After having considered the evidence of PW1 and 3 , the question that arises is whether the same is reliable or not. 29.In **Sahadevan v. State of Tamil Nadu (2012 SC 2435),** the Apex Court had settled the law relating to the extra judicial confession and laid down as follows: - _[22]. Upon a proper analysis of the_ **Crl.A.427/12** 31 _above - referred judgments of this Court, it will be appropriate to state the principles which would make an extra - judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra - judicial confession alleged to have been made by the accused._ _The Principles_ _i) The extra - judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution._ _ii) It should be made voluntarily and should be truthful._ _iii) It should inspire confidence._ _iv) An extra - judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence._ **Crl.A.427/12** 32 _v) For an extra - judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities._ _vi) Such statement essentially has to be proved like any other fact and in accordance with law._ - 30.Judging the evidence let in by PW1 and 3 in the light of the above principles laid down, we are of the view that the same was made voluntarily by the accused immediately after the incident. The evidence of PW3 corroborates the version of PW1. It does not appear to us from the facts of the instant case that there are material discrepancies or any inherent improbabilities. On the other hand, the evidence of PW1 as corroborated by the evidence of PW2 appears to be cogent and convincing and has got a ring of truth. It does 33 ## **Crl.A.427/12** not appear to us that the appellant has raised any challenge with regard to the above piece of evidence let in by PW1 and 3 when the said witnesses were cross examined. We are of the view that the learned Sessions Judge was justified in concluding that the extra judicial confession said to have been given by the accused is a strong link in the chain of circumstances. - 31.The next circumstance relied on by the learned Sessions Judge is regarding the false plea raised by the accused. According to the accused, as is evident from the statement in his 313 statement , he left the house after entering into a quarrel with his father. He went for a movie and he boarded a bus only at 10.15 p.m . He reached vayanasala bus stop **Crl.A.427/12** 34 late in the night and he had to walk about 1.5 kms to reach his house. It is the case of the accused that when he reached his house, he found his father lying dead and his mother was found weeping and unable to speak. The evidence of PW1, 3 and 4 would reveal that it was the accused who had alerted PW1 and informed him of the incident. After the neighbors had entered the house of the deceased and found him lying dead inside the house, the accused had come to the house. They also would say that it was the accused who had informed them about the fight that took place between him and the deceased and that he had assaulted him. In the light of the unchallenged evidence of PW1, 3 and 4, we are of the view that the plea of alibi taken by the accused is egregiously false and the same has **Crl.A.427/12** 35 been raised to set up a false defence. The learned Sessions Judge was quite right in holding that the false plea taken by the accused in a case based on circumstantial evidence would form an additional link in the chain of circumstances. The learned Sessions Judge also came to the conclusion based on the evidence of PW1 , 3 and 4 that the conduct of the accused who was present outside the house betrayed his active role in the infliction of injuries which resulted in the death of the deceased. He acted in an unusual manner and if in fact, he had come across the fact that his father was found dead in his own house, he would have initiated some steps to alert the police. We have already found that the evidence of PW1 and 3 as regards what had transpired late in the night inspired our **Crl.A.427/12** 36 confidence. We are of the view that the learned Sessions Judge was justified in holding that the abnormal conduct of the accused who was present outside the house after coming to know about the gruesome murder of his father clearly brought out that he had a role to play in the murder. This aspect is more so obvious because it is the admitted case that the deceased and the appellant along with the mother were staying in the house. There is no contention for the appellant that anyone else had perpetrated the gruesome murder. Though not in so many words, an argument was advanced that the injuries could have been inflicted by PW2 as well, as it had come out from the evidence that she was being tortured and abused from the date of their marriage. However, no such suggestions are made and **Crl.A.427/12** 37 the evidence let in clearly and convincingly would point to the involvement of the appellant in the crime. 32.In a case resting on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the **Crl.A.427/12** 38 - accused and must show in all probability, the act must have been done by the accused. These five golden principles constitute the Panchaseel of the proof of a case based on circumstantial evidence. (Sharad Birdichand Sarda v. State of Maharastra (1984 (4) SCC - 116). - 33.While the accused is entitled to the benefit of doubt, the doubt that is created should be a reasonable one. A reasonable doubt is a doubt which is entertained by a reasonable man. Fleeting imaginations amounting to hunches cannot pass the muster of reasonable doubt. That must arise from the evidence adduced in the case . - 34.After judging the facts of the case on hand, 39 ## **Crl.A.427/12** on the basis of the settled principles, we are of the view that the learned Sessions Judge was justified in holding the accused guilty . - 35.The matter does not end there. The learned counsel appearing for the appellant, relying on the extra judicial confession, would contend that the prosecution evidence would clearly belie that the accused had any intention to cause the death. According to the learned counsel at the most, what can be said is that the accused had the knowledge that his act is likely to cause death but he had no intention of causing the death of the deceased. - 36.The evidence of PW1 would reveal that the accused had gone to his house and had told him that he had assaulted his father and he **Crl.A.427/12** 40 wanted PW1 to go and see the condition of his father. The evidence of PW9, the doctor, would reveal that 20 injuries were found on the body of the deceased. He has deposed that injury No.4 to 11 are the fatal injuries. Ext.P8 postmortem certificate would reveal that injury No.4, 5 , 6 , 7, 9 & 10 are all lacerated wounds on the face and neck. Injury No.1 is an abrasion on the back of head above the occipit and injury no.8 is an irregular lacerated wound, bone deep over the jaw border. The doctor has not stated that any of these injuries are independently or cumulatively sufficient in the ordinary course of nature to cause death. The learned Sessions Judge had disbelieved the version of the prosecution that MO1 iron rod which was allegedly seized as per Ext.P4 mahazar would amount to a recovery **Crl.A.427/12** 41 - admissible u/s 27 of the Indian Evidence Act. It cannot be said for certain that MO1 weapon was used by the accused for causing the injuries. Though Ext.P9 report revealed the presence of human blood in MO1 weapon the same was not found to be conclusive by the learned Sessions Judge. The evidence of prosecution witnesses also would reveal that the deceased had brutally assaulted the mother of the appellant and it was in the said circumstances that he had interfered and caused injuries on his father. - 37.On a meticulous analysis of the above circumstances, we are of the view that the above proved act of the appellant would not amount to the offence of murder punishable u/s 302 of the IPC. Nevertheless, the appellant **Crl.A.427/12** 42 cannot escape from the liability of the proved act altogether. We are of the view that the appellant had committed the act with the knowledge that his act is likely to cause death but without any intention to cause death or to cause bodily injury as is likely to cause death attracting S.304 Part-II of the IPC. As for the sentence , on considering the background facts, the nature and manner of incident, the seriousness of the injuries found on the body of the deceased, we are of the considered view that the appellant is liable to undergo rigorous imprisonment for seven years for the offence u/s 304 Part-II of the IPC. 38.For the aforesaid reasons the appeal is partly allowed. The appellant's conviction and sentence u/s 302 IPC is hereby set aside. **Crl.A.427/12** 43 Instead, the appellant is convicted u/s 304 Part-II of the IPC and he is sentenced to undergo rigorous imprisonment for seven years. The appellant shall be entitled to set off as provided u/s 428 of the Code of Criminal Procedure for the period he has been in custody in this case. ## **Sd/-** **P.BHAVADASAN Judge** **Sd/-** **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/26.2.2016 //True Copy// P.S.To Judge