Kerala High Court
Vijayan Nair vs State Of Kerala on 20 September, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934
CRL.A.No. 1520 of 2008 ( )
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SC.961/2005 of III ADDITIONAL DISTRICT COURT (ADHOC-I), THRISSUR
C.P.58/04 OF Judicial First Class Magistrate, KUNNAMKULAM
APPELLANT(S)/APPELLANT/PETITIONER:
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VIJAYAN NAIR, C.NO.5207, CENTRAL JAIL
CONVICT NO.5207, CENTRAL JAIL, KANNUR.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT(S):
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STATE OF KERALA.
BY ADV. PUBLIC PROSECUTOR SRI.GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ.
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CRL.A.NO.1520 OF 2008
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Dated 20th September, 2012
ORDER
Sasidharan Nambiar,J.
Appellant who was convicted and sentenced for the offences under Sections 302 and 449 of Indian Penal Code by Third Additional Sessions Judge, Adhoc-I, Thrissur, filed this appeal from prison challenging the conviction and sentence. The prosecution case is that PW1 Subramanian is the Manager of the toddy shop No.19 situated at Pengamukku of Kattakambal village. On 6/4/2004 by about 2.45 p.m deceased Sudhakaran came to the toddy shop and consumed toddy and left the toddy shop. He returned back after 15 minutes. The appellant was then inside the toddy shop. The appellant asked for the money due to him from Sudhakaran. Sudhakaran did not pay the amount CRA 1520/08 2 and there ensued a quarrel between the two. PW4 Ani who was there in the toddy shop intervened and separated them. The appellant was sent out of the toddy shop. After some time, while the deceased was still in the toddy shop, appellant came back armed with MO.1 chopper used by coconut climbers and using the chopper inflicted several injuries on the neck and head of deceased Sudhakaran and left the toddy shop along with chopper. PW3 Suku who was present there in the toddy shop and witnessed the incident, along with others, took the injured to Royal Hospital, Kunnamkulam. PW5 doctor, Thomas Mathew examined the injured at 3.34 p.m and prepared Ext.P2 wound certificate. Sudhakaran breathed his last within five minutes of arrival in the causality. PW1 went to the house of Suni, owner of the toddy CRA 1520/08 3 shop after the injured was taken to the hospital and informed the incident. While he was with the owner, information was received from the hospital that Sudhakaran is no more. The owner directed PW1 to inform the police. PW1 went to the police station and furnished Ext.P1 FI Statement which was recorded at 4.15 p.m on 6/4/2004 by PW10 Sub Inspector, who prepared Ext.P1(a) FIR and registered Crime No.235/2004 for the offence under Section 302 of Indian Penal Code. PW11 Circle Inspector of Police took over the investigation. He went to the scene of occurrence at 5.30 p.m and prepared Ext.P4 scene mahazar, in the presence of PW7 the attesting witness. PW11 reached the hospital and prepared Ext.P6 inquest report, in the presence of PW9 and seized Mos.6 to 8 the dresses found on the body of the deceased. CRA 1520/08 4 Mos.2 to 4 were seized from the scene of occurrence at the time of preparing Ext.P4. PW11 furnished necessary requisition for postmortem examination. PW6 Dr.Sheeju conducted autopsy and prepared Ext.P3 postmortem certificate finding that the death was caused due to the injuries sustained on the head and neck. PW11 arrested the appellant at 8.15 p.m on 6/4/2004. On the information furnished by the appellant PW11 recovered MO.1 chopper at 1.15 p.m on 7/4/2004 under Ext.P5 seizure mahazar in the presence of PW8 and under Ext.P9 recovery mahazar seized MO.3 'thorthu' from north eastern corner of the tailoring shop of Parameswaran. Material objects were forwarded to the Forensic Science Laboratory and Chemical Laboratory and obtained Exts.P11 and P12 reports. PW11 furnished Ext.P10 report CRA 1520/08 5 incorporating the offence under Section 449 of Indian Penal Code also. After completing the investigation, the charge was laid for the offences under Sections 302 and 449 of Indian Penal Code before Judicial First Class Magistrate, Kunnamkulam, who committed the case to the Sessions Court. Learned Sessions Judge made over the case for trial to Additional Sessions Court, Thrissur. The appellant was defended by a counsel of his choice. When charge for the offences under Sections 302 and 449 of Indian Penal Code were framed and read over to the appellant, he pleaded not guilty. The prosecution examined 11 witnesses and marked 13 exhibits and identified 11 material objects. At the time of examination of PW4, Ext.D1 portion of his statement recorded under Section 161 of Code of Criminal Procedure was CRA 1520/08 6 confronted and marked and proved by the evidence of PW11. After closing the prosecution evidence, the appellant was questioned under Section 313 of Code of Criminal Procedure. When the incriminating evidence was put to the appellant, he denied the same and additionally contended that he did not inflict the injuries on the deceased and he is not aware who inflicted those injuries and he is innocent. Learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence, as there is evidence to connect the appellant with the offences. Appellant did not adduce any evidence.
2. Learned Sessions Judge on the evidence of Pws.5 and 6 found that the death of Sudhakaran was caused due to the injuries 2 and 3 recorded in Ext.P3, inflicted on the head and CRA 1520/08 7 neck of the deceased, which are sufficient in the ordinary course of nature to cause death and those injuries could be inflicted with a weapon like MO.1 chopper. Relying on the evidence of Pws.1 to 4, learned Sessions Judge found that it was the appellant who inflicted those injuries and caused the death after trespassing into the toddy shop. The appellant was accordingly convicted for the offences under Sections 302 and 449 of Indian Penal Code. After hearing the appellant on the question of sentence, he was sentenced to imprisonment for life and fine of Rs.2,000/- and in default rigorous imprisonment for six months for the offence under Section 302 of Indian Penal Code and rigorous imprisonment for five years and fine of Rs.1,000/- and in default simple imprisonment for one month for CRA 1520/08 8 the offence under Section 449 of Indian Penal Code. The appellant was granted set off provided under Section 428 of Code of Criminal Procedure subject to the orders passed by the appropriate authority under Sections 432 and 433 of Code of Criminal Procedure.
3. Argument of the learned Senior counsel appearing for the appellant is that there is no evidence to prove the exact origin and genuineness of the incident. It was pointed out that though in Ext.P1 FI statement PW1 disclosed that the incident occurred after 2.45 p.m and that too on the allegation that the deceased came there at 2.45 p.m and consumed toddy and went out and came back after 15 minutes while the appellant was in the toddy shop and there was a scuffle between the appellant and the deceased when the appellant CRA 1520/08 9 demanded money from the deceased which was due to him, and deceased refused to pay and PW3 intervened and appellant was sent out of the toddy shop and later he came back with a chopper and inflicted the injuries, at the time of evidence PW1 deposed that the scuffle was not after 2.45 p.m but at 12.30 p.m. It was pointed out that as against the allegation in Ext.P1 that PW1 went to the owner of toddy shop after the entire incident and that too after the injured was taken to the hospital, PW1 in cross examination deposed that he went to the house of the owner of the toddy shop after 12.45 p.m when the scuffle ended between the appellant and the deceased, and he walked a distance of 3 k.m and returned back, and if so, the incident cannot be as stated in Ext.P1 or as deposed by PW1 from the box. Learned Senior CRA 1520/08 10 counsel also pointed out that presence of PW2 was not mentioned in Ext.P1 FI statement, though presence of PW3 and some others were specifically mentioned and that itself cast doubt with regard to the presence of PW2 when the incident occurred. Learned Senior counsel also argued that even if the evidence of PW2 is believed, the incident cannot be as alleged by the prosecution, as PW2 also deposed that the scuffle was earlier after 12.30 p.m and the evidence does not inspire confidence. Learned Senior counsel also pointed out that if the evidence of PW3 is to be believed, the entire incident could only be part of one and the same incident and not two separate incidents, one that took place before 1 p.m and the other after 3 p.m. The learned Senior counsel also pointed out that PW2 who claimed to be there in CRA 1520/08 11 the toddy shop at 2.30 p.m has no case that after the appellant came to the toddy shop, appellant returned back and had gone out and thereafter returned back with chopper and inflicted injuries and as he admitted that the injuries were inflicted immediately after the scuffle, even if his evidence is believed, it is to be found that the deceased sustained injuries, immediately after the scuffle between the appellant and the deceased. Learned Senior counsel also argued that evidence of PW4 does not support the prosecution case that the scuffle was after 2.45 p.m as according to PW4, he was there in the toddy shop after 2 p.m and he witnessed the quarrel between the appellant and the deceased and he intervened and directed PW1 to inform Suni the owner of the toddy shop and Suni came to the toddy shop CRA 1520/08 12 and PW4 left the toddy shop along with Suni. It was pointed out that if that version is true, evidence of PW1 and statement in Ext.P1 can never be true. Learned Senior counsel therefore, argued that prosecution did not unveil the actual genesis of the incident, in order to deny the appellant the benefit of exception available under Section 300 of Indian Penal Code. It was pointed out that even if the deceased was not armed and the appellant was armed, evidence establish that both the deceased and the appellant had consumed toddy before the incident and the appellant asked deceased for the money due to him and it was refused by the deceased. It is pointed out that it is clear that thereafter a quarrel arose between the appellant and the deceased and even if appellant had inflicted CRA 1520/08 13 any injuries with the weapon which was available with him, it was not the result of any premeditation and could only the result of sudden provocation and in such circumstances, in any case exception 4 of Section 300 applies and the appellant cannot be convicted for the offence under Section 302 of Indian Penal Code and at the worst he could only be convicted under part II of Section 304 of Indian Penal Code.
4. Learned Public Prosecutor pointed out that the evidence of Pws.5 and 6 with Ext.P2 and P3 postmortem certificates conclusively establish that deceased Sudhakaran sustained, grievous injuries on his neck and head with MO.1 weapon and each of those injuries are sufficient in the ordinary course of nature to cause death. It was also argued that there is CRA 1520/08 14 no reason to disbelieve the evidence of Pws.1 to 4. Evidence of Pws.1 to 3 establish that deceased Sudhakaran sustained injuries at the hands of the appellant and that too using MO.1 chopper. It was pointed out that no reason whatsoever was shown why Pws.1 to 3 to falsely depose against the appellant and when they were not in inimical terms, there was no reason for them to set up a false case against the appellant and there is no reason to disbelieve them. It was also pointed out that Ext.P1 FI statement was lodged immediately after the incident and at that point of time there was no necessity whatsoever for PW1 to falsely allege that appellant inflicted injuries on the deceased and in such circumstances, there is no reason to interfere with the conviction. Learned Public Prosecutor also argued that CRA 1520/08 15 there is no reason to disbelieve the evidence of Pws.1 to 3 with regard to the discrepancy in the time of the scuffle between the appellant and the deceased and on the evidence it cannot be found that appellant inflicted injuries either on sudden provocation or without intention to cause his death and therefore, conviction of the appellant for the offence under Section 302 of Indian Penal Code is sustainable. Learned Public Prosecutor also argued that as the appellant came to the toddy shop armed with chopper not for consuming toddy, it can only be considered as a trespass and therefore, the conviction for the offence under Section 449 of Indian Penal Code is also perfectly legal.
5. The evidence of PW5 doctor with Ext.P2 wound certificate conclusively establish that CRA 1520/08 16 the deceased was taken to Royal Hospital, Kunnamkulam by one Manoj and PW5 examined the injured at 3.34 p.m on 6/4/2004 and prepared Ext.P2 wound certificate. The alleged cause of injury disclosed to the doctor was that the injuries were inflicted by a person using a chopper which is being used for cutting coconut. Evidence of PW6 the doctor with Ext.P3 postmortem certificate establish that PW6 conducted autopsy between 11.30 a.m and 1.30 p.m on 7/4/2004 and prepared Ext.P3 postmortem certificate. PW6 noted the following ante mortem injuries.
B.Injuries (Ante-mortem)
1. Incised wound 4x1.5x5cm, transverse over back of right shoulder, with inner end 2cm below top of shoulder and 6cm outer to root of neck-
directed forwards and outwards reaching behind outer end of right collar bone with outer end sharply cut and inner end split.
CRA 1520/08 17
2. Incised wound 16.5x1.5x5cm transversely oblique wound with concavity downwards over back lower part of pinna of left ear (4cm long oblique with upper end at middle of plane with lower part missing and front lower end 10cm outer to midline of nose and 5cm above angle of mandible. The muscles and muscular blood vessels were cleanly cut underneath. There was a cut (1.8x0.1x0.3) on body of mandible, the transverse process of first cervical vertebra exposed.
3. Incised wound 14x3.5x6cm, transversely oblique curved with concavity downwards over left side of neck, face and back of head left side
- 4cm outer to midline with inner lower end under chin, 3cm outer to midline and 0.5cm below jaw bone, the back end 0.2cm and front end 4.5cm below injury No.2 Muscles, muscular blood vessels, internal jugular and external jugular vein were cut underneath and inter vertebral disc between C3 and C4 exposing the dura of spinal cord.
4. Incised wound 9.5x2x5cm, transversely oblique ever back of head, mainly right side with outer end 3 cm above tip of mastoid process at 10 o' clock position, with a cut on occipetal bone underneath CRA 1520/08 18 3.5x1.5x1.5cm. There was comminuted fracture 4x3cm on posterior cranial fossa, right side. Brain 1200mg congested, the back end of external wound was touching the back end of injury No.2.
5. Incised wound 10x1.5x4cm, transversely oblique over nape of neck, across midline with right upper end 3.5cm below tip of mastoid at 7 o'clock position, the muscles, muscular blood vessels were cut underneath and intervertebral disc between C5 and C6 exposing dure of spinal cord.
6. Incised wound 1.5x0.3x0.2cm, over lower part of back of neck at midline.
7. Abrasion 1.5x0.5cm over front of left leg.
8. Abrasion 0.5x0.5cm over right cheek.
PW6 on the basis of the findings, found that deceased died due to the incised wounds sustained on the head and neck, namely injuries 2 and 3. From the nature of the said injuries and the force with which those injuries were inflicted and the weapon with which those injuries were inflicted, we find no reason to CRA 1520/08 19 disbelieve the evidence of PW6 that those injuries caused the death of Sudhakaran and those injuries are sufficient in the ordinary course of nature to cause death.
6. The question is how Sudhakaran sustained those injuries and who inflicted them. The fact that Sudhakaran sustained those injuries from the toddy shop, where PW1 is working as Manager and PW3 as the cook, was not disputed. The evidence of PW11 Circle Inspector with Ext.P4 scene mahazar conclusively establish that the deceased sustained injuries inside the toddy shop. PW1 being the Manager of the shop is a natural witness. PW2 who prepare curries for the consumers of the toddy shop is also a natural witness. PW3 claims to have been present inside toddy shop when the incident occurred as CRA 1520/08 20 according to him he had been there to consume toddy. Though learned Sessions Judge did not give importance to the discrepancy with regard to the difference of time when the scuffle arose, we find that it is not a matter which could be ignored. First version of PW1 was immediately after the incident, as recorded by PW10 the Sub Inspector in Ext.P1 FI statement. What was disclosed by PW1 at that point of time was that the deceased came to the toddy shop at 2.45 p.m and consumed toddy for Rs.10/- and returned. It was alleged that the deceased again came back after 15 minutes and while so, appellant was there in the toddy shop. It is his version that appellant demanded money due to him, from the deceased and the deceased did not pay and there was a scuffle and PW4 who was present at toddy shop intervened and the CRA 1520/08 21 appellant was sent out of the toddy shop. It was alleged that after some time he came back to the toddy shop armed with MO.1 chopper and thereafter inflicted the injuries on the deceased. If that version is correct, it can only be found that appellant with the intention to cause death of Sudhakaran came to the toddy shop armed with a chopper and due to previous incident inflicted injuries and caused the death of Sudhakaran. But when PW1 was cross examined it was admitted by PW1 that the scuffle was not after 2.45 p.m but at 12.30 p.m on the same day. It was not an accidental mistake committed by PW1. PW4 who according to PW1 from the witness box as also in his version in Ext.P1, intervened in the scuffle and separated the appellant and the deceased deposed that the scuffle arose at 12.30 p.m. It CRA 1520/08 22 is the evidence of PW4 that seeing the scuffle, he intervened and separated the appellant and the deceased and he directed PW1 to call Suni, the owner of the toddy shop and PW1 called Suni and Suni came to the toddy shop and along with Suni PW4 left the toddy shop. If that be the case, it is not known for what reason PW1 in Ext.P1 suppressed this fact and stated that PW1 went to the house of the owner, to inform the incident after the entire incident was over and the injured was taken to the hospital. The evidence of Pws.1 and 2 that scuffle arose at 12.30 p.m was further corroborated by the evidence of PW2. PW2 also deposed that the scuffle between the appellant and the deceased arose at 12.30 p.m and not after 2.45 p.m as stated in Ext.P1 FI statement. The evidence of PW3 is that he came to the toddy shop at 2.45 CRA 1520/08 23 p.m and he was there in the toddy shop till the entire incident was over. If his version is to be believed, while he was in the toddy shop, the deceased was also there in the toddy shop. The appellant came thereafter, armed with chopper, and inflicted injuries and the injured Sudhakaran was taken to the hospital. Though PW3 did not mention anything about the scuffle in chief examination, when his statement recorded under Section 161 of Code of Criminal Procedure was confronted in cross examination PW4 admitted that there arose a scuffle between the appellant and the deceased and that was while he was in the toddy shop. PW3 further added that it is immediately thereafter appellant inflicted the injuries on the deceased. If this evidence tendered by PW3 is true, the prosecution case on the origin and CRA 1520/08 24 development of the incident cannot be true. Again if the first incident culminated in the scuffle between the deceased and appellant was before 1 p.m as deposed by Pws.1,2 and 4 the prosecution case that appellant came to the shop after 2.45 p.m and there was a scuffle and appellant was sent out and he came back armed with a chopper and inflicted injuries cannot be true.
7. From the entire evidence, it is clear that the original incident as to disclosed by PW1 in Ext.P1 and sworn to by Pws.1,2 and 4 is not fully correct. It is to be born in mind that immediately after the incident when PW1 lodged Ext.P1 FI statement there was no necessity for PW1 to suppress the scuffle which arose at 12.30 p.m and set up a false case of scuffle after 2.45 p.m. In such circumstances, CRA 1520/08 25 it is clear that the time of scuffle spoken to by PW1, PW2 and PW4 from the witness box is not true and they changed the time only to deny the appellant his right of defence. From the evidence of PW3 it is clear that a scuffle arose between the appellant and the deceased when appellant demanded the money due to him. If that be so, it can only be found that while the deceased was in the toddy shop, appellant also came there and appellant asked for money due to him from the deceased and deceased refused to pay the same and there was a scuffle between the two and as appellant was armed with a chopper by, appellant inflicted injuries on the neck and the head with that weapon which resulted in the death of Sudhakaran.
8. The question then is what is the offence proved. From the evidence of Pws.5 and CRA 1520/08 26 6, it can only be found that the injuries inflicted on the neck and head are sufficient in the ordinary course of nature to cause death. Even if those injuries were inflicted during a scuffle, it can only be found that appellant inflicted those injuries, with the necessary knowledge that if such injuries are inflicted on the neck and head, it would cause the death of Sudhakaran. When those injuries are proved to be inflicted by the appellant and those injuries are sufficient in the ordinary course of nature to cause death and the injuries could not be caused while intending to inflict some other injuries. Hence it can only be found that clause thirdly of Section 300 of Indian Penal Code applies and if so, the offence could only be under Section 300 of Indian Penal Code. The question then is whether CRA 1520/08 27 any of the exceptions to Section 300 applies. The argument of the learned Senior counsel is based on Exception 4 which provides that culpable homicide is not murder if it is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Though the prosecution attempted to suppress the fact that deceased sustained injuries in continuation of the scuffle that arose between the appellant and the deceased, we have already found that it was in fact the injuries were inflicted in continuation of the scuffle. The evidence establish that the scuffle arose when the appellant demanded the deceased to pay him the money due to him and it was refused. The evidence also establish CRA 1520/08 28 that both the appellant and the deceased had consumed toddy. On the evidence, it cannot be found that the appellant inflicted the injuries, with premeditation. When the evidence establish that there was a sudden fight in the heat of passion, upon a sudden quarrel between the appellant and the deceased and in that quarrel, appellant inflicted those injuries which caused the death and on the material it cannot be found that appellant had taken undue advantage or acted in an unusual manner or cruel manner, it is a fit case where exception 4 is attracted. If so, appellant cannot be found guilty for the offence under Section 300 of Indian Penal Code. If so, he could only be convicted for the offence under Section 304 of Indian Penal Code. When the evidence establish that appellant inflicted CRA 1520/08 29 those injuries, which are sufficient in the ordinary course of nature to cause death and only because of exception 4 of Section 300, the offence comes out of Section 302 of Indian Penal Code, the conviction could only be under Part I of Section 304 and cannot be under part II. Hence the conviction of the appellant for the offence under Section 302 cannot be sustained and he can be convicted only for the offence under Section 304 part I of Indian Penal Code.
9. Though learned Sessions Judge, convicted the appellant for the offence under Section 449 of Indian Penal Code, the evidence establish that appellant had gone to that toddy shop to consume toddy. There is no case that appellant came to the toddy shop in search of the deceased or with the knowledge that CRA 1520/08 30 deceased was there and to cause his death or to inflict injuries on him. On the other hand, the evidence establish that he came to the toddy shop for consuming toddy and while consuming toddy there arose a quarrel between the appellant and the deceased and the injuries were inflicted. In such circumstances, it cannot be said that appellant trespassed into toddy shop and inflicted injuries on the deceased. In such circumstances, conviction of the appellant for the offence under Section 449 of Indian Penal Code cannot be sustained.
10. Then the only question is regarding the sentence. Part I of Section 304 of Indian Penal Code provides a punishment of imprisonment for life or imprisonment of either description for a term which may extend to ten years and also fine. Considering the entire CRA 1520/08 31 relevant facts including the nature of the injuries inflicted and the condition of the appellant as disclosed by him when questioned by the learned Sessions Judge on the question of sentence, interest of justice will be met, if the appellant is sentenced to rigorous imprisonment for ten years and a fine of Rs.5,000/- and in default rigorous imprisonment for one year for the offence under Section 304 part I of Indian Penal Code.
In the result, appeal is allowed in part. The conviction of the appellant by Third Additional Sessions Judge, Adhoc-I, Thrissur in S.C.961/2005 for the offences under Sections 449 and 302 of Indian Penal Code are set aside. He was found not guilty of the said offences awarded. Appellant is found guilty for the offence under Section 299 and punishable under CRA 1520/08 32 part I of Section 304 of Indian Penal Code. He is convicted and sentenced to rigorous imprisonment for ten years and a fine of Rs.5,000/- and in default rigorous imprisonment for one year. Appellant is entitled to set off under Section 428 of Code of Criminal Procedure for the period he has been in custody in this case.
M.SASIDHARAN NAMBIAR, JUDGE.
C.T.RAVIKUMAR, JUDGE.
uj.