Kerala High Court
Sadasivan vs The Circle Inspector Of Police on 30 October, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938
CRL.A.No. 1827 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 538/1997 of ADDITIONAL SESSIONS JUDGE FAST
TRACK COURT-1, TRIVANDRUM DATED 30-10-2003
APPELLANT(S)/ACCUSED:
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SADASIVAN, S/O. KESAVAN,
NEDEYAVILLA VEEDU,
PULIKKODE, MALAKKAL,
KILIMANOOR, THIRUVANANTHAPURAM.
BY ADVS.SRI.V.S.BABU GIREESAN
SRI.PRASAD GANDHI
LEGAL AID COUNSEL BY ADV. SMT.M.CHANDRALEKHA
RESPONDENT(S)(COMPLAINANT):
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THE CIRCLE INSPECTOR OF POLICE,
KILIMANOR POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N. SURESH.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.D. RAJAN, J.
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Crl.Appeal No.1827 of 2003
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Dated this the 29th day of March, 2016
JUDGMENT
This appeal is preferred by the accused against the conviction and sentence in S.C. No.538 of 1997 of the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram under Sec.304 Part-II of the Indian Penal Code (for short 'IPC'). He was charge sheeted by the Additional Sessions Judge, Fast Track-I, under Sec.302 IPC. After trial, the learned Additional Sessions Judge (Fast Track-I) acquitted him under Sec.302 IPC, but convicted under Sec.304 Part II IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs.5,000/-, in default rigorous imprisonment for one year. Being aggrieved by that accused preferred this appeal.
2. The charge is that, on 11.01.1996 at 2.00 p.m., the Crl. Appeal No.1827/2003 2 accused with the intention of causing death of his wife Sudha, beat her three times at the left cheek, forcibly caught hold on the neck and pushed her towards the back thereby, the backside of her head hit against the southern wall of Neduvila house No.2/758 of Kilimannor Panchayath. As a result, she sustained injuries on head, neck, left side nose and right elbow and she became unconscious. While undergoing treatment at Medical College Hospital, Thiruvananthapuram she succumbed to the injuries. Kilimanoor Police registered a crime and after completing investigation, the Circle Inspector, Kilimanoor laid charge against the accused under Sec.302 IPC in the Judicial First Class Magistrate Court, II, Attingal. The case was committed to Sessions Court, Thiruvananthapuram and subsequently, it was made over to Additional Sessions Judge. In pursuance of the charge, prosecution examined PW1 to PW19 and marked Exts.P1 to P16 as documentary evidence. MO1 to MO5 were Crl. Appeal No.1827/2003 3 admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him but he did not adduce evidence. The contradictory portion of the statement of PW15 was marked as Ext.D1.
3. Adv. Chandralekha has been appointed as the counsel to provide a legal aid to the appellant. She contended that there is no direct or circumstantial evidence to prove the incident. No evidence has been adduced by the prosecution to prove that the appellant hit the head of the deceased against the wall. The hearsay evidence of PW8 is not admissible since he is living in enmity with the appellant for a long time. She consumed poison after lunch and the injury might have caused due to fall inside the kitchen. The medical evidence is not corroborating the prosecution case and the appellant is entitled to get the benefit of doubt.
4. Learned Public Prosecutor admitted that there is Crl. Appeal No.1827/2003 4 no direct evidence to prove the incident but the evidence of PW2 shows that the accused slapped on the cheek of the deceased in the hall room when he was standing there. After this, accused went inside the house. Even though, direct evidence is not there, the various circumstances and the injuries on the deceased would show that she sustained serious head injuries due to assault.
5. Now the question is when there is no direct evidence to prove the incident, whether the prosecution has proved the case by adducing circumstantial evidence. Both parties have admitted that there is no direct evidence in this case. Larger Bench of the Apex Court discussed the admissibility of circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] as follows:
"Before discussing the evidence of the witnesses, we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements Crl. Appeal No.1827/2003 5 are said to have been made by Manju when she visited beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
While considering the circumstantial evidence, Apex Court issued the following guidelines in the above decision:
"The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established.
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that Crl. Appeal No.1827/2003 6 is to say, they should "not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) 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 accused and must show that in all human probability the act must have been done by the accused."
Therefore, if the witnesses speak about part of the truth or whole of it, that must be analysed meticulously with other circumstances in this case.
6. The starting of the incident was deposed by PW2 who is a property seller. His evidence shows that on 11.01.1996 between 1.45 p.m. and 2 p.m, he met the appellant at Panappamkunnu market at that time he told that he intend to sell his house and 13= cent of land, accordingly both of them came to the property and inspected the boundaries of the property, at that time appellant told him that he is not taking food from his house since one week. While standing in the Crl. Appeal No.1827/2003 7 property his wife informed him that his daughter told her that she could not pay the monthly payment of Rs.500/- of that month and she assured that she will pay both instalments of Rs.1,000/- by next month. Hearing this, the appellant entered inside the house, caught hold on her right hand and beat thrice on her cheek, thereafter he dragged her inside the room and she fell down on the floor by hitting the ear portion. PW2 saw the beating of the appellant on the cheek only, after that he left the place, while talking with another person at a short distance, the appellant came there. After some time, one person came there told that appellant's wife was found lying in the kitchen and enquired to him whether he had assaulted her. PW2 left from the place and on the next day, he knew about the death of his wife. During cross examination, PW2 stated that when he was present at the place of occurrence, the neighbours were not found there. Analysing his evidence, it is found that the appellant slapped Crl. Appeal No.1827/2003 8 on the cheek of the deceased and he has no knowledge about the injuries on the body. In the above incident, PW1 gave Ext.P1 statement to the Police.
7. The evidence of PW3 shows that on 11.1.1996 he got information that the deceased was lying unconscious in her house immediately, he removed her to the nearby private hospital from there, she was removed to Medical College Hospital, Thiruvananthapuram. His evidence shows that he did not know the reason for the death, but he deposed that while she was trying to take firewood she fell down and sustained injuries.
8. The daughter of the deceased was examined as PW4, who deposed that she has no direct knowledge about the incident. She is working in a school and giving Rs.500/- per month to her father. She also accompanied the deceased to the hospital. PW3, PW5 and PW6 are daughters of the deceased and they have no knowledge about the incident. Crl. Appeal No.1827/2003 9
9. The evidence of PW8, who is a neighbour, shows that when he was standing in his courtyard, he heard hue and cry from the house of the deceased and the accused was standing inside the house. PW2 was standing at the entrance and told the appellant not to beat the deceased, at that time, the appellant shouted that he will kill her, subsequently he knew about the death of Smt. Sudha from school students. The cause of death was due to assault of the appellant. But, PW2 did not support the evidence of PW8, however PW8 admitted that he is living in enimity with the accused. The evidence may be further analysed with the evidence of PW9 who visited the house of the deceased on the date of incident. Her evidence shows that when she visited the house, there was no sound from the house, appellant and PW2 were found proceeding through the road. The denied portion of the statement of PW9 was marked as Ext.P6. The evidence of PW10 shows that he took the Crl. Appeal No.1827/2003 10 deceased to the hospital in his vehicle to Panappamkunnu thereafter to Madavoor and from there, the deceased was removed to Medical College Hospital, Thiruvananthapuram. The deceased was unconscious while removing to hospital.
10. While considering the evidence of occurrence witness, the Court has to look whether the witnesses were speaking a part of truth and such evidence is reliable. PW2, who is the occurrence witness deposed about the initial incidents alone. While reading the evidence of PW2 as a whole, I have examined whether it appears to have a ring of truth in that story. His evidence shows that while he was standing outside the house of the appellant, he raged towards his wife, subsequently, he caught hold of her right hand and beat thrice on her cheek, thereafter, he dragged her inside the room. But PW2 stated that she fell down on the floor by hitting the ear portion, which was not seen by him since he was standing at the entrance. After this, PW2 left the place Crl. Appeal No.1827/2003 11 and the appellant followed him. This is the only incriminating evidence against the accused to prove the overt act. While scrutinizing the above evidence of PW2, with the medical evidence it is found that the injury sustained on head and neck caused the death, but who inflicted blunt injury, was not proved by the prosecution. In this context, the legal infirmities pointed out by the learned counsel appearing for the accused has some relevancy. The other witnesses had no direct knowledge with regard to the incident. The evidence of PW8 and PW15 shows that there was quarrel in the house of the appellant and several people gathered there which is against the evidence of PW2.
11. PW16 deposed that on the date of incident at 2 p.m., he heard a quarrel from the house of the appellant, hearing the sound several people gathered there. This witness admitted the presence of PW2 at the time of quarrel. After some time, appellant and PW2 left the house but at Crl. Appeal No.1827/2003 12 4 'O' Clock hearing the news, he visited that house. He is living in enmity with the appellant for several years. Analysing the evidence of these witnesses, it is clear that the story stated by PW16 and PW2 are contradicting each other.
12. When there is no direct evidence, the circumstantial evidence and medical evidence are relevant to prove the facts. As an expert, PW14 conducted postmortem examination and issued Ext.P11 certificate. PW14 noticed following antemortem injuries in Ext.P11:
"1. Contusion 3 x 3 x 0.5 cm on the back of head in the middle overlying the occiput.
2. Contusion 3 x 2 x 0.5 cm on the back of head in the middle 3cm below occiput.
Brain (1350 gms) showed bilateral subdural bleeding, thin subarachnoid bleeding on left side and signs of raised intracranial tension.
3. Contusion 4 x 2 x 1 cm on the right side of neck 1.5 cm below the angle of jaw bone involving subcutaneous tissue and superficial part of sternomastoid muscle. The superior born of thyroid cartilage on right side showed a fracture.
4. Abrasion 1 x 2 cm on the back of right elbow.
5. Lacerated wound 2.5 x 0.2 x 0.2cm oblique on the left side of nose its upper inner end 1 cm below the root of nose."Crl. Appeal No.1827/2003 13
The chemical analysis report Ext.P12 reveals that carbofuran, a toxic carbonate compound was found in viscera and blood. After receiving Ext.P12 report, she issued Ext.P13 final opinion. The death was due to blunt injuries sustained to head and neck. The possibility of carbofuran poisoning contributed to death cannot be ruled out. Analysing the medical evidence, it is found that the death was due to blunt injuries of head and neck, but the prosecution failed to prove who inflicted injury and the manner in which it was sustained. The cause of subdural and sub arachnoid bleed on the brain are injury Nos. 1 and 2. Extradural, subdural, sub arachnoid and intra cerbral bleed can occur due to the above injuries. A single hit on a totally flat surface will not produce 2 contusions. She categorically stated that the injury Nos.1 and 2 are due to local blunt force. No direct or circumstantial evidence has been adduced by the prosecution to show that accused inflicted the above injuries on the Crl. Appeal No.1827/2003 14 deceased.
13. The medical evidence shows that the deceased consumed poison before death, which was cleared in the chemical examination report. The doctor, who conducted postmortem examination opined that the deceased sustained injury before death. But, the circumstances under which she sustained injury has to be proved by the prosecution either by direct evidence or by circumstantial evidence. It is true that PW2 might have witnessed the initial quarrel with the appellant. Whether the quarrel prompted the deceased to consume poison, was not disclosed by the prosecution. When she was removed to hospital, whether she was conscious or unconscious is not clear from the evidence. Another aspect is that whether she had disclosed about the incident to her relatives before her death is not clear from the evidence. If the family members deliberately suppress the actual cause for consuming poison by the deceased to others and to the Crl. Appeal No.1827/2003 15 doctor, that is a serious matter. She might have disclosed the reason to her close relatives when she was removed to the hospital. However, the doctors opined that head injury alone was the reason for death.
14. Apex Court in Shivji and others v. State of Madhya Pradesh [ AIR 1980 SC 552] held as follows:
"In view of the medical evidence discussed above, it is manifest that having regard to the injuries sustained by the appellant Shivaji, it was impossible for him to fire the gun as alleged by the prosecution witnesses. Thus the evidence given by the prosecution is wholly inconsistent with the medical evidence. The prosecution deliberately concealed the manner in which the accused persons viz. Shivaji and Bhonda have received the injuries, and have thus not come out with the true version of the occurrence. It may be that if the two injuries were received by the appellant Shivaji and Bhonde in the third incident itself, the accused may have been justified in the right of private defence of person to fire at the deceased. In these circumstance therefore we are satisfied that the prosecution has not proved its case beyond reasonable doubt. Finally when the Sessions Judge had acquitted the appellant and rejected the prosecution case, it could not be said from the nature of the evidence led by the prosecution that the view taken by the Sessions Judge was not reasonably possible. It may be that the High Court may have taken a different view but the High Court has not shown that the view taken by the learned Sessions Judge was not reasonably possible. We have gone through the evidence ourselves and are of the opinion that the view taken by the Sessions Judge was the Crl. Appeal No.1827/2003 16 only view which could have been reasonably possible. The appeal is, therefore, allowed and the appellants are acquitted of all the charges framed against them. As appellant No.7 is reported to be dead, appeal abates against him."
Therefore, analysing the medical evidence with occular evidence, I am of the opinion that the prosecution failed to prove how the deceased sustained injury.
15. The investigation was conducted by the Sub Inspector of Police, Kilimanoor who was examined as PW17. His evidence shows that on 12.01.1996, he recorded Ext.P1 statement of PW1 and thereafter registered a crime, Ext.P1
(a) is the First Information Report. PW11 attested Ext.P8 inquest report. PW12 attested Ext.P9 scene mahazar. PW13 prepared Ext.P10 site plan. On 12.1.1996 at 5,30 p.m., PW17 arrived at the place of occurrence and prepared Ext.P9 mahazar. On 13.1.1996 at 10 a.m., he arrived at Medical College Hospital and prepared Ext.P8 inquest report. Material objects found on the body were taken into custody, Crl. Appeal No.1827/2003 17 after describing in Ext.P8. He identified MO1 to MO5 at the time of taking him into custody. On 17.1.1996, the accused was arrested and interrogated, on the next day, he was produced before Court. Further investigation was conducted by PW18, who recorded Ext.P7 and P8 statements and prepared a draft charge. PW19 completed investigation and laid charge before Court. But, how she sustained head injury was not explained in this case. If the head of the deceased was hit against the wall by the accused,the investigating officers have to trace out the blood stain mark from the wall or from the room. No such scientific investigation was conducted in this case. The deceased was found lying in the kitchen with bleeding. How she came to the kitchen was also not explained by the prosecution. Absence of such explanation creates a doubt in the credibility of the prosecution case. PW3, the close relative of the deceased deposed that while the deceased was taking fire wood from Crl. Appeal No.1827/2003 18 the height, she fell down and sustained injury. The circumstances under which the deceased was found lying in the kitchen was not properly investigated by the police officers and no scientific evidence was collected from kitchen. In case of circumstantial evidence, failure of one link destroys the entire chain. The fact highlighted by the prosecution does not fully satisfy the rule of circumstantial evidence.
16. In an offence of culpable homicide under Section 299 IPC, both intention and knowledge are used as alternate ingredients, however, intention and knowledge are two different things. Intention is the mental element in committing the crime and Knowledge is an awareness of the consequences of the act. But, motive is something different which prompts a man to form an intention. Therefore, it is clear that it is the mental element of the accused which decide whether a particular act is culpable homicide Crl. Appeal No.1827/2003 19 amounting to murder, or culpable homicide not amounting to murder. Apex Court in Basdev. v. State of Pepsu [AIR 1956 SC 488] had considered the difference between the two terms. The line between knowledge and intention is very thin, but it is not difficult to perceive from the facts. When 'intention' is an important mental element in all crimes, it becomes crucial in committing the offence of culpable homicide, because the degree of mental element determines the degree of crime. In certain cases, intention can be presumed from knowledge. Therefore as far as the offence of culpable homicide is concerned, the degrees of mens rea explained in the section are: (i) an intention to cause death;
(ii) an intention to cause dangerous bodily injury as is likely to cause death; and (iii) knowledge that the act is likely to cause death. It is not always necessary to have a pre-meditation or pre-planning to kill a person, but the act of a person is likely to result in death is sufficient to constitute intention. Crl. Appeal No.1827/2003 20 However, no hard and fast rule can be laid down for determining the existence of intention. Therefore,in an offence under section 299 IPC, a guilty intention or knowledge is thus essential and it assume the existence of mental element which complete the section.
17. Here the evidence of PW16 is only an interested testimony, moreover she is living in enmity with the appellant. However, such evidence cannot be reliable to prove the circumstances under which the deceased sustained injury. PW2 and PW15 had given inconsistent evidence and they were not telling about the actual incident which happened on that day. The Court has to sift the evidence and sort out the truth from the falsehood, the exaggerated narration of the story in a doubtful manner cannot be considered as proof for a conviction. The learned Additional Sessions Judge failed to appreciate that position and convicted the accused under S.304 Part II IPC.
Crl. Appeal No.1827/2003 21
In the result, the conviction and sentence passed by the trial Court u/s.304 Part II IPC are set aside. Analysing the evidence, it is found that the accused committed offence punishable u/s.323 IPC and he is convicted u/s.323 IPC and sentenced to imprisonment for three months and fine of 1,000/-, in default of payment of fine, simple imprisonment for one month. The period of detention undergone by the appellant during trial, investigation and enquiry shall be set off against the terms of imprisonment imposed on him. He is directed to surrender in the trial Court to undergo the modified sentence, failing which the learned Additional Sessions Judge, Thiruvananthapuram shall issue non bailable warrant against the appellant forthwith.
Crl.Appeal is disposed of.
P.D. RAJAN, JUDGE.
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