Kerala High Court
Mohanan Nair vs State Of Kerala on 29 January, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939
CRL.A.No. 286 of 2014 (D)
--------------------------
AGAINST THE JUDGMENT IN SC 284/2012 of ADDL.SESSIONS COURT - IV,
KOTTAYAM DATED 29-01-2014
APPELLANT(S)/ACCUSED:
---------------------
MOHANAN NAIR,
C.NO.8994,
CENTRAL PRISON, TRIVANDRUM
BY ADV. J SUNIL(STATE BRIEF)
RESPONDENT/COMPLAINANT:
------------------------
STATE OF KERALA,
REPRESENTED BY DGP,
HIGH COURT OF KERALA.
R1 BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3-11-
2017, THE COURT ON 14/11/2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
==========================
Crl.Appeal No. 286 of 2014
==================
Dated this, the 14th day of November, 2017
J U D G M E N T
Shaffique, J.
This appeal is filed by the accused in SC No.284/2012 challenging judgment dated 29/1/2014 in which he was convicted for offence under Section 302 of Indian Penal Code (I.P.C.) and sentenced to undergo imprisonment for life and to pay a fine of `25,000/-, in default of payment of fine to undergo rigorous imprisonment for one year.
2. According to the prosecution, one Chacko was seen dead at about 1.00 p.m. on 4/2/2012 inside a room at Leejoy ITC building. It is alleged that Chacko was murdered by the accused. The offence was committed by hitting Chacko with a hammer (MO1) on the left side of the back of his head, back of ear, on the head portion above the left ear and on the left side of the forehead.
3. Crime No.67/12 was registered by the Kumarakom police station. The accused was arrested on the same day and since then Crl.Appeal No.286/14 -:2:- he has been in judicial custody. The investigation was completed and final report was filed before the Judicial First Class Magistrate Court-I, Kottayam. Case was committed to the Sessions Court and numbered as SC No.284/2012.
4. Charge was framed against the accused for having committed offence u/s 302 of I.P.C. He pleaded that he is not guilty. Prosecution examined PWs 1 to 16 and marked Exts.P1 to P22. They produced MOs 1 to 8 as material objects in the case. The accused was questioned u/s 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances against him. He denied all such circumstances and stated that he is innocent. He also filed an additional statement wherein he had stated that Chacko trespassed into his room and slapped him out of previous enmity for not giving him `100/-. His tooth was broken. Chacko was fully drunk at the relevant time. He tried to snatch away the ring of the accused. There was a scuffle between them. He pushed the deceased. Scuffle continued. Blood oozed out from the head of the deceased. Chacko took a hammer and tried to hit the accused. He managed to get the hammer from the deceased and he brandished the hammer which ought to have hit on the head of Crl.Appeal No.286/14 -:3:- the deceased. According to him, it was only an exercise of right of private defence, otherwise his life would have been in danger. PW4 was the room mate of deceased. Though the accused sought his assistance for shifting the deceased to the hospital, he ran away. Few other people gathered including PW6. Thereafter, the police had come and he was taken away.
5. Court below found that the prosecution had proved the incident beyond reasonable doubt and the right of private defence is not convincing nor probable and accordingly convicted and sentenced the accused as stated above. Since the accused was not represented by a counsel, this Court had engaged Advocae J.Sunil from the panel of Advocates maintained by this Court.
6. Learned counsel for the appellant submitted that there is no eye witness to the incident and the prosecution purely relied upon circumstantial evidence. The deceased was found inside the room where the accused was staying. Therefore, at no strength of imagination can it be stated that the accused was the assailant. That there was a scuffle between the parties was clear from the injury suffered by the accused. Therefore, it can only be a case Crl.Appeal No.286/14 -:4:- where the death was caused accidentally. He had no intention to cause death to the deceased and the deceased succumbed to injury suffered by him in the scuffle.
7. PW1 who was the Vice President of Thiruvarppu Grama Panchayath is the first informant. He was informed about the incident by Smt.Sherin Liju. He gave FI statement Ext.P1. He also identified the hammer MO1.
8. PW2 is an attestor to Ext.P2 inquest report. He also identified MO1 hammer. The building is owned by PW2's father PW3.
9. PW3 deposed that the accused was a tenant in one of the rooms, since 2012. Deceased Chacko and PW4 were residing in another room which was adjacent to the room of the accused. He is an attestor to Ext.P3 scene mahazar.
10. PW4 deposed that, on 4/2/2012, he and Chacko came back after work at 2 a.m and went to sleep. At about 7 a.m, they woke up, went to Kottayam town, consumed liquor, went for a cinema, had their lunch and then came back to the room. The accused was in his room and Chacko was having a conversation with him. PW4 went to the bathroom. When he came back, he saw Crl.Appeal No.286/14 -:5:- the accused beating Chacko on his head with a hammer inside the room of the accused. He immediately went to the hotel and informed the owner. He rushed to the landlord's house to inform him. On the way, he saw PW6 Leelamma, wife of landlord who was proceeding to the room of the accused to give him lunch. They saw the accused dragging body of Chacko towards the door of the room holding the legs. Blood was oozing from his head. PW6 sprinkled some water. But there was no response and they assumed that Chacko had died. Local people gathered and police came to the spot. He also identified MO1 hammer.
11. PW5 is the photographer who took the photographs of the dead body lying in the scene of occurrence. Ext.P4 series are the photographs.
12. PW6 deposed that, she, being the wife of the owner of the building, used to supply lunch to the accused occasionally. She also narrated the incidents spoken to by PW4.
13. PW7 is a person who had arranged the stay for PW4 and the deceased in the said room.
14. PW8 who runs a hotel near the junction stated that he is a signatory to Ext.P3 scene mahazar. He had come to the scene Crl.Appeal No.286/14 -:6:- on getting information from PW4.
15. PW9 is the Additional Professor and Deputy Police Surgeon who conducted postmortem. Ext.P5 is the certificate issued by him. Following are the ante-mortem injuries noticed in Ext.P5:-
"1. Lacerated wound on left frontal eminence 3x1cm, transverse bone deep, scalp contusion underneath 2x2cm.
2. Lacerated wound on left parietal eminence 3.5x0.5m vertical bone deep.
3. Lacerated wound on back of left ear 1.5x0.5cm vertical bone deep 2 cm. behind the ear top.
4. Lacerated wound on left mastoid region 3x2.5cm vertical 3 cm behind the ear lobule, bone deep, scalp contusion on left temperoparieto occipital region for over an area of 12x12cm. Skull intact an intra cerebral clot 1 cm in diameter seen in right pontine hemisphere, subdural and subarachnoid hemorrhages seen on both sides of brain. The brain congested and moderate flattening of gyri noticed.
5. Scalp contusion on bregma (topmost) portion of skull region 2x2 cm.
6. Scalp contusion on right side of head at temporal fossa 3x3 cm."
16. According to the Doctor, cause of death was due to head injury. He also deposed that injuries 1 to 6 could be caused Crl.Appeal No.286/14 -:7:- by an assault with an object like MO1 and injury No.4 is sufficient in the ordinary course to cause death.
17. PW10 is the Scientific Assistant who had collected hair from the hammer and dark brown stains from the floor. It was given to the investigating officer as per Ext.P6 report. She also identified MO1 hammer in which there were blood stains.
18. PW11 was the Police Constable examined for the purpose of proving Ext.P7 mahazar by which MO2 shirt and MO3 lungi of the accused were seized.
19. PW12 proves Ext.P8 certificate to prove the ownership of building. The building is owned by PW3.
20. PW13 has prepared the scene plan Ext.P9.
21. PW14 has recorded the FI statement (Ext.P1) and registered Crime No.67/2012. Ext.P10 is the First Information Report.
22. PW15 is the investigating officer who completed the investigation. He also identified all the material objects and proved the other documents including property list. Ext.P20 is the report from Forensic Science Lab.
23. PW16 is the Judicial First Class Magistrate, Kottayam Crl.Appeal No.286/14 -:8:- who recorded the 164 statement of PW4.
24. The fact that Chacko died on account of the ante- mortem injuries sustained by him as taken note of by PW9 and Ext.P5 certificate is not in dispute. The question is whether crime was committed by the accused with MO1 hammer. PW4 has categorically stated that he had seen the accused hitting the deceased with a hammer. That the injury suffered by the deceased can be caused by MO1 hammer is proved by the evidence of PW9. The Scientific Assistant PW10 has also collected hair, MO1 and dark brown stains from the floor which were entrusted to the investigating officer as per Ext.P6. From the above evidence, it is rather clear that Chacko died on account of the injuries suffered by him. The evidence of PWs 1 to 4 and 6 to 8 also proves the fact that the accused was occupying the room in which the incident had happened. PW4 had deposed that he saw accused beating Chacko with the hammer. He went down and on the way he saw PW6. When PW6 reached the scene, accused told her that he had beaten the deceased twice with MO1. All the witnesses saw the deceased, the hammer and the accused in the very same scene of occurrence. Everyone knew the accused. They Crl.Appeal No.286/14 -:9:- identified the accused. From the above evidence, it is rather clear that the accused is the assailant. The only aspect to be considered is whether there was any motive for committing the crime and whether the crime was committed as an act of self defence. PW4 stated that they had consumed liquor, had lunch and they had come to the room. PW4 went to the bathroom and the deceased was having a conversation with the accused. Apparently, there had been a conversation between them, which fact is not clear. According to the accused, the issue between the parties was in regard to an amount of `100/- and according to him, the deceased had attacked him. Whether there was a scuffle inside the room between the accused and deceased is not borne out by any evidence. The accused was staying in the said room since 2012 and no earlier incident of violence had been reported. What exactly was the reason for committing such a murder is not evident. Who was the actual assailant and what prompted the accused to hit the deceased with the hammer on his head is not clear. At any rate, it is a case of culpable homicide. But the question is, whether it comes under any of the exceptions to Section 300 of the IPC. Exception 2 reads as under:- Crl.Appeal No.286/14 -:10:-
"Exception 2:- Culpable homicide is not murder if the offender,in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
25. In the event of such a situation, conviction can be imposed only under Section 304 of IPC. As already stated, there is no evidence of any prior enmity the accused had against the deceased. The incident happened in the room of the accused. Therefore, it is apparent that the deceased had gone to the room of accused. This fact is spoken to by PW4 also. What happened in the said room is not spoken to by any person. We have only the version of the accused in his statement. There is every possibility of some sort of scuffle and the injury could have been inflicted on a sudden provocation. Under such circumstances, we are of the view that the conviction for murder under Section 302 was not justified.
26. But, when the act of murder is done with the knowledge that hitting with a hammer is likely to cause death or Crl.Appeal No.286/14 -:11:- may cause death, in the absence of any intention, he will be liable for punishment for culpable homicide not amounting to murder coming under Part II of Section 304. We are of the view that the accused can be sentenced under Section 304 Part II of IPC.
In the result, this appeal is allowed and the conviction and sentence granted u/s 302 IPC is set aside. The appellant/accused is convicted for offence of culpable homicide not amounting to murder punishable u/s 304 Part II of IPC and the sentence which he had already undergone and the fine amount of `25,000/- (Rupees Twenty five thousand only) shall be treated as sufficient sentence for the crime. If the fine is not paid, he shall undergo rigorous imprisonment for a further period of one year. The accused shall be released from jail, if his presence is not required for any other case.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge