Bijesh @ Unni vs State Of Kerala on 30 June, 2011

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Kerala High Court

Bijesh @ Unni vs State Of Kerala on 30 June, 2011

The substantial question that is raised by the learned Senior Counsel for the appellant is whether, even if all the facts are admitted, court below was justified in convicting the accused for the offence punishable under Section 302 of Indian Penal Code and awarding a sentence of imprisonment for life and fine of Rs.75,000/- with default clause of simple imprisonment for one year.

2. Ajith Kumar, the deceased, was the brother of PW1 who laid Ext.P1 First Information Statement. The incident as alleged by the prosecution is that on 30.07.2005, Ajith Kumar, who was previously engaged in Crl. Appeal No.1203/2011 2 fish vending and who, at the time of incident, was engaged in selling of books, was on his way along with PW2 to his house on the motorbike driven by him. When they reached a place called 'Thumbukandy peedika', a bicycle was seen coming from opposite side and the person who came on the bicycle abused the rider of the motorbike for splashing mud water on him. Further allegation is that the cyclist, who is the accused herein, when the deceased and pillion rider questioned him about the abuses showered on them, manhandled the deceased causing severe injuries which ultimately resulted in his death. PW1, the brother of deceased, who came to know that his brother Ajith Kumar died on the way to hospital, laid Ext.P1 First Information Statement. It was recorded by PW13 who registered crime as per Ext.P15 First Information Report.

3. Investigation was taken over by PW14 who was the Circle Inspector of Nadakkavu Police Station at the relevant time. He entered into investigation on Crl. Appeal No.1203/2011 3 31.07.2005. He prepared the inquest report of the deceased which is marked as Ext.P5. He had the photographs of the body taken and the photographs and the negatives are Exts.P7 and P8 respectively. Thereafter he visited the place of occurrence and prepared Ext.P9 scene mahazar and also seized the motorcycle found at the place. After the inquest was conducted, body was sent for autopsy and PW10 conducted autopsy and furnished Ext.P10 report. In the meanwhile, PW14 had recorded statements of certain witnesses and he also had statement under Section 164 Cr.P.C recorded with respect to two witnesses after following necessary procedures. He obtained the plan of the site where the incident had occurred. The accused surrendered before court and coming to know about the same, PW14 obtained custody of the accused. On his information, the cycle on which he was travelling at the relevant time was seized as per Ext.P14. It may be noticed here that PW14 had also seized the clothes found on the body of the deceased at Crl. Appeal No.1203/2011 4 the time of inquest and they are marked as M.O.s 2, 3, 4 and 5. He filed Ext.P21 report showing the details of the accused. He also had filed forwarding note to send the article seized during investigation for forensic examination.

4. Subsequent investigation was conducted by PW15, the successor in interest of PW14. He verified the records, obtained Ext.P22 report from the Forensic Science Laboratory and after completing investigation, laid charge before court.

5. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kozhikode under Section 209 Cr.P.C after following necessary procedures. The said court made over the case to Additional District and Sessions Court Fast Track (Adhoc-II), Kozhikode for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the Crl. Appeal No.1203/2011 5 offences under Sections 323 and 302 IPC, to which, the accused pleaded not guilty and claimed to be tried. That forced the prosecution to examine PWs 1 to 16 and to mark Exts.P1 to P22. M.O.s 1 to 5 were got identified and marked.

6. After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C regarding the incriminating circumstances brought out in evidence against him. He denied all the circumstances and maintained that he is innocent. He also added that on the date of incident, he and PW3 were coming along after their work on their respective bicycles and PW3 was cycling a little ahead of him. A motorbike which was driven by deceased of which PW2 was a pillion rider caused mud water to splash on him and he fell down. The accused would say that he got up and questioned as to the manner in which the motorbike was driven by the deceased. That act of accused, according to him, seems to have infuriated the deceased and PW2 and then he Crl. Appeal No.1203/2011 6 says that by the time people had gathered at the spot and something had occurred. He would say that he went home with the bicycle. He denied having knowledge about anything else that had happened thereafter.

7. Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He examined DW1 and had Ext.D1 marked.

8. The court below, on an analysis of the evidence, found that the prosecution has successfully established the case against the accused and held him guilty of the offences under Sections 302 and 323 IPC. The conviction and sentence as already mentioned followed.

9. Assailing the conviction and sentence, learned Senior Counsel appearing for the appellant, Sri.P. Vijaya Bhanu, contended that even assuming the entire prosecution case is admitted, the act of the accused cannot fall within the ambit of Section 302 IPC and the Crl. Appeal No.1203/2011 7 finding that the accused is guilty of offence under Section 302 IPC is not proper. It was contended that no weapons were used and there is dearth of evidence to show that any injury was caused to the head of deceased which, according to the prosecution, is the cause of death of deceased. Learned Senior Counsel went on to point out that the definite case of prosecution is that after being pushed down, the head of deceased was banged on the road which resulted in two injuries, one of which or both, according to the prosecution, proved fatal and resulted in death of deceased. Learned Senior Counsel pointed out that the prosecution story looks extremely artificial and it is inconceivable that the alleged act of the accused would have been a unilateral one. There must have some act from the side of the deceased and PW2 which might have provoked the accused to do what he did. In other words, learned Senior Counsel went on to point out that the prosecution has concealed more than it has revealed. To put in other words, learned Senior Counsel tried to Crl. Appeal No.1203/2011 8 impress this Court that the incident had not occurred as alleged by the prosecution. If that be so, according to the learned Senior Counsel, accused is certainly entitled to benefit of doubt and that he is entitled to an acquittal.

10. Learned Public Prosecutor, on the other hand, pointed out that the sequence of events as narrated by PWs 2, 3, 4 and 5 would clearly show that there was no act committed by the deceased and PW2 which might have provoked the accused. On the other hand, their evidence is clear to the effect that after the motorbike was stopped and both deceased and PW2 got down from the same, accused mounted an attack on them. The consistent evidence of the above witnesses is to the effect that the deceased was thrashed so badly and since he could not get up from the road, he was removed to the hospital. In fact, learned Public Prosecutor pointed out that the accused was fully aware of the state of affairs of the deceased and he knew the gravity of the acts committed by him. Having inflicted injury on the vital Crl. Appeal No.1203/2011 9 part of the body i.e. on his head, according to the learned Public Prosecutor, the accused cannot be heard to say that he neither had the intention to cause death nor had the knowledge that the fatal injury that is caused by him, in the ordinary cause of nature, is likely to cause death. In other words, learned Public Prosecutor pointed out that if the act does not fall within the ambit of clause 3 of Section 300 IPC, at any rate should fall within the ambit of clause 4 of Section 300 IPC and the court below was justified in convicting the accused for the offence under Section 302 IPC.

11. The principal question that arises for consideration is the cause of death of Ajith Kumar, the deceased. There was much debate regarding the origin of incident which will be referred to at a later stage. The fact remains that the deceased and PW2 were coming on a motorbike driven by the deceased while the accused came from the opposite side. Going by the First Information Statement given by the brother of deceased, Crl. Appeal No.1203/2011 10 it seems that motorbike while going along the road splashed mud water on the accused to which he took strong objection. Further allegation is that abuses were hurled by the accused to which objection was taken by the deceased and PW2. However, it is stated that no sooner than they get down from the motorbike, the accused mounted an attack on them. From the evidence of PWs 2, 3, 4 and 5, it is almost evident that the deceased was thrashed by the accused and he was finding it difficult to get up. Even though Ajith Kumar, deceased, was removed to the Medical College Hospital, unfortunately, he died on the way.

12. That Ajith Kumar died on the way is not a matter in dispute. Inquest was conducted by PW14 and he has furnished Ext.P5 inquest report which shows the injuries found on the body of deceased. Autopsy was conducted by PW10 who furnished Ext.P10 report which shows the following injuries:

Crl. Appeal No.1203/2011 11

"1. Lacerated wound, 1.8x0.3x0.3cm, sagittal, over right side of head, with front end 9cm vertically above tragus.

2. Vertically oblique graze abrasions (with upper ends outer), over a vertical area 18x5cm, over left side of back of abdomen, 8cm outer to midline and 24cm below shouldertop.

3. Contused abrasion, 9x0.4cm, oblique, over right side of back of abdomen, with upper outer end 9cm outer to midline and 38cm below shouldertop.

4. Multiple contused abrasion, pinhead size to 2x1cm (oval), sparsely and irregularly scattered over a transverse area, 6x6cm, over right loin, with lower border touching buttock, 11cm outer to midline.

5. Lacerated wound, 1x0.2x0.2cm, transversely oblique, over left side of back of head, over occiput, with lower inner end touching midline.

6. Contusion, 0.5x0.5x0.3cm, reddish, over left cheek, 2cm each from nose and eye.

7. Contused abrasion, 7x1cm, transverse, Crl. Appeal No.1203/2011 12 over right side of front of chest, with inner end at midline, 8cm below root of neck.

8. Contused abrasion, 2x1cm, oblique over right side of front of chest, with upper outer end 10cm vertically below nipple.

9. Multiple contused abrasions, 0.1x0.1cm to 0.5x0.5cm, irregularly and sparsely scattered over outer aspect of ankles, back of elbows and front surface of glans penis.

10. Fissured fracture of skull, 8cm long, along midline of occipital bone, with lower front end at rim of foramen magnum. Scalp overlying contused reddish, 0.2cm thick. Bilateral reddish Subdural and subarachanoid bleeding present. Dura intact. Brain (1260g) oedematous with multiple punctate bleeding irregularly and sparsely scattered all through white matter and pressure grooves around cerebellar tonsils and unci".

13. In Ext.P10 report, the opinion given as to the cause of death is that the deceased died due to head Crl. Appeal No.1203/2011 13 injury. True, death was due to an internal injury caused as a result of external injuries i.e. injury Nos.1 and 5 either individually or by combination. He is definite even at the time of evidence that death was due to the injury caused to the head of the deceased. From the above items of evidence, it becomes clear that the death of Ajith Kumar was not a natural death and it was a result of injuries inflicted on him which means that death is homicidal.

14. The next question that arise for consideration is whether the accused can be held responsible for the act of inflicting injuries which led to the death of Ajith Kumar. The court below seems to have placed reliance on the evidence of PWs 2, 3, 4 and 5. Among whom PW2 was the pillion rider in the motorbike driven by Ajith Kumar. PW3 is a person who, according to the prosecution, was coming on his bicycle just a little ahead of accused. PWs 4 and 5 are alleged to be two occurrence witnesses who, according to prosecution, had Crl. Appeal No.1203/2011 14 occasion to witness the incident.

15. The evidence of PW1 is not of much consequence because he has no direct knowledge about the incident and his information is only hearsay though he is the author of Ext.P1 First Information Statement.

16. The crucial evidence is that of PW2. PW2 is the pillion rider who was going along with the deceased. His evidence is to the effect that on the date of incident, at about 7.45 p.m, he and the deceased were returning home after their work. While the deceased was engaged in selling of books, PW2 worked in a toddy shop. The incident occurred, according to him, at a place called 'Kummandi Peedika' at Karaparamba. According to him, when they reached the place of incident, they happened to see two persons coming in separate bicycles from opposite direction. One of them uttered something and that made the deceased to stop the motorbike. Then one of the persons who was travelling on bicycle got down and questioned the manner in which the motorbike was driven Crl. Appeal No.1203/2011 15 by the deceased. PW2 would say that after asking the said question, without any provocation, he was kicked on his abdomen by the accused. Seeing the attack on PW2, deceased came near him which resulted in the accused attacking Ajith Kumar, the deceased also. PW2 would say that he was again beaten and he fell down. He would say that at that time two persons were coming along the road and he seems to have complained to them that he and Ajith Kumar were being unnecessarily assaulted by the accused and they need help. One of them said to Unni not to do anything to PW2 and deceased. Since a close relative of PW2 namely, Mohandas was residing nearby, he went to that place. While he was going to the relative's house, he happened to see deceased being kicked and fisted by the accused. By the time he returned with Mohandas, he found the deceased sitting crouched on the road. After hiring an auto that had come along, Ajith Kumar was first removed to the Co-operative Hospital. PW2 would say that when deceased was being Crl. Appeal No.1203/2011 16 mounted the auto, he had almost collapsed. The doctor of the Co-operative Hospital, after examining the deceased, advised that he be taken to the Medical College Hospital. A car was hired and Ajith Kumar was removed to the Medical College Hospital. The doctor in the Casualty examined Ajith Kumar and declared that he is dead. He also says about the treatment taken by him for the injury suffered by him at the hands of the accused.

17. PWs 3, 4 and 5 are also occurrence witnesses. According to prosecution, among whom PW3, who was a cyclist, was going ahead of accused at the relevant time. PW3 is employed in a paint company. He speaks about the place of incident and also about the manner in which the incident had occurred. He would say that when the motorcycle passed, it splashed mud water on the accused. Though PW3 carried on his journey, he heard a commotion from behind which attracted his attention and when he returned to the place of incident, he found the deceased sitting exhausted. He was taken Crl. Appeal No.1203/2011 17 in an auto to hospital. Since he did not fully support the prosecution, he was later declared hostile and the prosecution put questions to him in the nature of cross examination.

18. A reading of the evidence of PW3 would show that the accused had assaulted the deceased. Learned Public Prosecutor pointed out that though PW3 has been declared hostile, there are statements made by him in examination supporting the prosecution case and those portions which support the prosecution case can be safely acted upon. It is significant to notice that this witness had given a statement under Section 164 Cr.P.C to PW16. Though he stands by the statement, he says that it was given under the compulsion by Police.

19. We, after anxious consideration of the reason given by PW3 for giving statement under Section 164 Cr.P.C, are of the opinion that the complaint made that it was given under compulsion can only be an afterthought. Ext.P2, the statement given under Crl. Appeal No.1203/2011 18 Section 164 Cr.P.C, to a great extent supports the prosecution case.

20. PW4, unfortunately for the prosecution, denied having seen the incident. He only says that he happened to see two persons going one behind the other and the person behind kicking the other making him fall on the road. He would say that the deceased was lying in the water that had collected in the road. PW4 would say that he asked the deceased to be removed to the side of the road. When he was about to hire an auto for removing the deceased to hospital, an auto came by and the deceased was removed in that auto to the hospital. He denied having seen any other part of incident and even though he was declared hostile, questions were put in the nature of cross examination and nothing useful could be elicited. However, his evidence is clear to the effect that an incident had taken place at the place of incident wherein accused had mounted an attack on the deceased.

Crl. Appeal No.1203/2011 19

21. Next is the evidence of PW5. He runs a shop near to the place of incident and it appears that the deceased is familiar to him and vice versa. On the date of incident, at about 7.30 p.m - 8.00 p.m, while PW5 was in his shop, he heard a commotion on the road. He came out and came to know that a scuffle is going on. He returned to his shop. At the time of giving evidence, he betrayed the prosecution and denied having seen the incident. Even though this witness also had furnished statement under Section 164 Cr.P.C and had also admitted having given such statement, he too came forward with a complaint that it was under compulsion of police that the statement had been given. Strangely enough, the said statement is not seen marked either through PW15 or PW16 who had occasion to take statement from PW5. He denied having given crucial statement which finds a place in previous statement i.e in the statement under Section 161 Cr.P.C to the Police. He too did not support the prosecution.

Crl. Appeal No.1203/2011 20

22. The court below mainly acting on the evidence of PW2 came to the conclusion that the acts of the accused have been established.

23. Before going further, it is necessary to refer to the defence evidence also in this regard. The defence examined DW1 to prove that accused had suffered injuries in the incident. A perusal of Ext.D1 shows the history of injury as follows:

"

".

24. Even accepting the evidence of DW1 and Ext.D1, it is very clear that the only grievance of the accused was that he had suffered injury in the accident and he had no grievance that at that point of time he was either assaulted or had been subjected to any manhandling by the deceased or PW2. Therefore, the defence evidence is not of much consequence in this regard. Even if the evidence of PWs 3, 4 and 5 did not Crl. Appeal No.1203/2011 21 fully support the prosecution case, a reading of their evidence show that an incident had taken place at the relevant time in which the deceased was badly injured. There is nothing to show that there was mutual fight in which the accused claims to have suffered injuries. As already noticed, the defence evidence adduced did not support such a view at all. There is evidence to show that injuries were inflicted on the deceased by the accused.

25. The next question that arises for consideration is even assuming that the prosecution has succeeded in establishing that injuries were caused to the deceased by the accused, what is the offence actually made out. The court below, after referring to various decisions of the Apex Court, came to the conclusion that offence under Section 302 IPC is attracted. It is not clear from a reading of the judgment of the lower court under which part of Section 300 IPC, the act would fall so as to constitute the offence punishable under Section 302 IPC. Crl. Appeal No.1203/2011 22

26. In order to ascertain the offence committed by the accused, it is necessary to refer to the evidence of PW10 who had conducted autopsy. He has in no less terms stated that injury No.1 and injury No.5 either individually or cumulatively can cause injury No.10 which is the cause of death. Injury Nos.1 and 5 are on the head of the deceased. What is significant is that the prosecution case is that after the deceased had fallen down on the ground by the first act of assault by the accused, he was pulled up by the collar and his head was banged on the road. Unfortunately for the prosecution, there is absolutely no evidence in this regard at all. None of the witnesses namely, PWs 2, 3, 4 or 5 say about the accused having lifted the deceased by collar and banged his head on the road.

27. In order to attract Section 300 IPC, certain ingredients will have to be satisfied. It will be appropriate to extract Section 300 IPC which reads as follows: Crl. Appeal No.1203/2011 23

"300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid".

28. Going by Section 300 IPC, in order to construe an act falling under culpable homicide to murder, it has to fall within one of the four clauses of Section 300 IPC. Recollecting the facts in the case, it is Crl. Appeal No.1203/2011 24 extremely difficult to say that there is any intention to cause death going by the sequence of events as available on record. It is also difficult to come to the conclusion that the accused intended such bodily injury and that he has the knowledge that his act is likely to cause death of a person concerned. It is not possible to hold that the act committed by the accused was with the intention of causing bodily injury and the injury, if inflicted, is sufficient in the ordinary course of nature to cause death.

29. In spite of anxious consideration by us, we are unable to bring the act of accused within clause 4 of Section 300 IPC also. The acts complained of and which stand established as per the evidence of PWs 2, 3, 4 and 5 are that the accused first hit the deceased on his face which caused his fall and going by the evidence on record, he continued kicking and fisting the deceased. To be more precise, fisting and kicking, according to prosecution witnesses, was confined to chest and abdomen of the deceased. None of them say about having seen any Crl. Appeal No.1203/2011 25 injury being inflicted on the head of deceased. There is thus want of evidence to show that accused had intentionally caused injury on the vital part of the body of deceased.

30. But one cannot overlook the evidence of PW10 who asserts that injury Nos.1 and 5 resulting in injury No.10 can be caused only by using force.

31. Though the learned Public Prosecutor very vehemently contended that the act of the accused would fall within the ambit of Section 304 Part I or II IPC, we find it difficult to accept the above contention. The accused was prompted to act as admitted by the prosecution case due to the splashing of mud water on him by the deceased and PW2 while they passed the accused who was travelling on bicycle. Of course, further evidence is that the accused had uttered something which made the deceased to stop his motorbike and thereafter the incident had occurred. It is very clear from the evidence that injuries were inflicted on a spur of a Crl. Appeal No.1203/2011 26 moment and it is difficult to come to the conclusion that the accused had any intention to cause death of a person concerned or that any intention could have found so as to do away with the deceased. All that the accused intended was he should react to the act of deceased splashing mud water on him. It has already been observed that there is no evidence to show that there was any intention on the part of accused to cause death or such bodily injury as is likely to cause death. It is difficult to impute knowledge to the accused that his act is likely to cause death. Therefore, Section 304 Para II IPC is also not attracted. But, that does not mean that no offence is committed. Going by the evidence of PW10, injury Nos.1 and 5 could be caused in a fall. But he would say that both could not be caused by a single fall. He also says that either of them or both taken together would cause internal injury which resulted in death of deceased.

32. It is to be noticed that injury No.10 makes mention of fracture of skull. That must be as a result of Crl. Appeal No.1203/2011 27 fall which was a result of forcible push or hit by the accused. His act therefore cannot but escape from falling within Section 325 IPC.

33. An identical situation was considered in Crl.Appeal No.237/2010 which was disposed of by judgment dated 19.03.2010 by a Division Bench of this Court. There too death was caused due to the injury suffered as a consequence of a fall. The accused slapped the victim on his face and it was held that by no stretch of imagination, offence under Section 299 IPC would be established and therefore it was unnecessary to embark on whether offence under Section 300 IPC can be said to be established. Thereafter the court went on to consider what if any is the offence committed by the accused. It was held in paragraph 29 as follows:

"29. What then is the offence committed by the accused? That he had caused hurt voluntarily cannot possibly be disputed. The evidence convincingly establishes that the deceased had suffered the injuries at the Crl. Appeal No.1203/2011 28 hands of the appellant. The question now is whether that injury can be held to be simple hurt or whether it is grievous hurt under Section 320 I.P.C. The hurt suffered was caused voluntarily and the hurt had certainly endangered the life of the deceased. In these circumstances, we are satisfied that the offence committed by the accused cannot be held to fall merely under Section 323 I.P.C. It must be held to fall under the sweep of 325 I.P.C. We therefore hold that the appellant can be found guilty only of the offence of voluntarily causing grievous hurt without using any dangerous weapon which is punishable under Section 325 I.P.C".

The principle laid down in the above decision applies with all force to the facts of the present case.

34. After having perused the evidence independently and having heard the learned Senior Counsel for the appellant and the learned Public Prosecutor, we are of the opinion that the court below has erred in coming to the conclusion that the offence under Section 302 IPC is made out. We, after having considered Crl. Appeal No.1203/2011 29 the matter in detail, feel that at best offence under Section 325 IPC can be attracted to the facts of the case.

We therefore set aside the conviction and sentence passed by the court below for the offences under Sections 302 and 323 IPC and find the accused guilty of the offence under Section 325 IPC and he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.35,000/- in default of payment of which he shall suffer rigorous imprisonment for six months.

This appeal is disposed of as above.

Sd/-

P.BHAVADASAN JUDGE Sd/-

RAJA VIJAYARAGHAVAN V JUDGE smp

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