Rajesh vs State Of Kerala on 6 February, 2025

[Cites 9, Cited by 0]

Kerala High Court

Rajesh vs State Of Kerala on 6 February, 2025

Accused 1 and 2 in S.C.No.74 of 2017 on the files of the Court of the Additional Sessions Judge-II, North Paravur, are the appellants in the appeal. Among them, accused 1, 3 and 4 in the case are the son, wife and daughter of the second accused respectively. Accused 3 and 4 were acquitted and accused 1 and 2 were convicted for the offences punishable under Sections 302, 323 and 325 read with Section 34 of the Indian Penal Code (IPC).

2. The second accused and his brother, Mohanan were residing in houses close to their family house. Their brother Ravindran was residing in the family house. The second accused and his brother, Mohanan were performing a customary ritual in connection with the festival of a nearby temple as their hereditary right. There was a verbal altercation between Mohanan and the second accused on 06.03.2010 in connection with the performance Crl.Appeal No.887 of 2018 2025:KER:9518 -: 3 :- of the said customary ritual. A few minutes past midnight on 06.03.2010, when Ravindran came out of the family house to lock his bicycle, he noticed that Mohanan was lying inert in the courtyard of the house of the former. Ravindran immediately informed the matter to the wife of Mohanan and they together took Mohanan to the Government Hospital, North Paravur. On the following day, Mohanan was taken to the General Hospital, Ernakulam for scanning and he was brought back home on the same day itself. At about 5.45 a.m. on 08.03.2010, Mohanan developed inability to pass urine and when the said fact was brought to the notice of Ravindran, he along with the wife of Mohanan again took Mohanan to the Government Hospital, North Paravur and by the time they reached the said hospital, Mohanan passed away.

3. On the basis of the information furnished by Ravindran, a case was registered by North Paravur Police on 08.03.2010 under Section 174 of the Code of Criminal Procedure (the Code). The investigation in the case revealed that the death of Mohanan is a homicide and that it was the accused who caused the death of Mohanan. Accordingly, the final report was filed in the case against the accused under Sections 323, 324, 325 and 304 read with Section 34 IPC. The accusation against the accused in the final Crl.Appeal No.887 of 2018 2025:KER:9518 -: 4 :- report is that there was a verbal altercation between Mohanan and the second accused at about 7.00 p.m on 06.03.2010 in connection with ritual performed by them during the temple festival; that at about 8.45 p.m. on the same day, the accused went together to the house of Mohanan, hurled abusive words at him and provoked him to come out of the house by banging on the doors and windows of his house; that when Mohanan came out of the house, they beat him with wooden rods and when he fell down, the first accused squeezed his testicles and thereupon, the accused beat Mohanan and stamped him on his abdomen and Mohanan succumbed to the injuries caused by the accused.

4. On the accused being committed to trial, the Court of Session framed charges against the accused under Sections 323, 324, 325 and 302 read with Section 34 IPC. The accused pleaded not guilty. The evidence in the case consists of the oral evidence of PWs 1 to 23 and Exts.P1 to P30 proved through them. MO1 is the material object identified in the case. As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. At that stage, the accused examined two witnesses on their side as DW1 and DW2 and proved through them Exts.D1 to D4 documents. Crl.Appeal No.887 of 2018

2025:KER:9518 -: 5 :- On an appreciation of the evidence, the Court of Session thereupon found accused 1 and 2 guilty of the offences punishable under Sections 323, 325 and 302 read with Section 34 IPC and sentenced them, among others, to imprisonment for life. They were however found not guilty of the offence punishable under Section 324 IPC. Accused 3 and 4 were however acquitted of all the charges. Accused 1 and 2 are deeply aggrieved by their conviction and sentence, hence this appeal.

5. Heard the learned counsel for accused 1 and 2 as also the learned Public Prosecutor.

6. It is mainly based on the oral evidence tendered by the daughter and wife of Mohanan who were examined as PWs 2 and 4 respectively that the Court of Session found accused 1 and 2 guilty of the offences punishable under Sections 323, 325 and 302 read with Section 34 IPC. The essence of the arguments advanced by the learned counsel for accused 1 and 2 is that the evidence tendered by the said witnesses are wholly unreliable. In order to bring home the said point, the learned counsel pointed out various circumstances. We are not referring to the circumstances pointed out by the learned counsel, as we propose to deal with the same elaborately at a later part of this judgment. It was also contended by Crl.Appeal No.887 of 2018 2025:KER:9518 -: 6 :- the learned counsel that even assuming that there was an occurrence as alleged by the prosecution, there is nothing on record to indicate that the injuries allegedly inflicted by the accused was the cause of the death of Mohanan for, even according to the prosecution, the cause of the death is sepsis. It was also argued by the learned counsel that even if it is taken that the internal injury sustained by Mohanan was a cause for the sepsis, accused 1 and 2 cannot be convicted for the offence punishable under Section 302 IPC. Per contra, the learned Public Prosecutor argued that PWs 2 and 4 being the daughter and wife of Mohanan, they are natural witnesses whose presence at the scene at the time of occurrence cannot be doubted and that there are absolutely no reasons to disbelieve them and if that be so, the impugned judgment is in order.

7. The point that arises for consideration in the appeal is whether the conviction and sentence passed against accused 1 and 2, are sustainable in law.

8. Let us now examine the evidence in the case.

PW1 is Ravindran. His evidence was only that there was a quarrel on 06.03.2010 between the second accused and Mohanan; that at about 10 p.m., there was a commotion in the midst of which he Crl.Appeal No.887 of 2018 2025:KER:9518 -: 7 :- heard a heated exchange of words between the second accused and Mohanan as also the cries of Mohanan and that after sometime, when he came out of his house to lock his bicycle, he saw Mohanan lying inert in the courtyard of his house. It was deposed by PW1 that he then called the wife of Mohanan as also the Councillor, Ramachandran and took Mohanan along with them to the Government Hospital, Paravur. It was deposed by PW1 that he came to know that Mohanan was taken to Ernakulam on the following day and was brought back home on the same day. It was deposed by PW1 that on 08.03.2010, the wife of Mohanan informed him that Mohanan was unable to drink water and pass urine. According to PW1, he immediately took Mohanan again to the Government Hospital, Paravur and the doctor there, after examining Mohanan, informed PW1 that he is no more. PW1 affirmed that it was he who gave Ext.P1 First Information Statement. PW1 explained in his evidence that there was a verbal altercation between the second accused and Mohanan at 7.00 p.m. on 06.03.2010 and it was thereafter that he heard the commotion. It was deposed by PW1 that it was about two hours after the commotion that he saw Mohanan lying in the courtyard of his house. In cross-examination, it was clarified by PW1 that Mohanan was a person who often drinks Crl.Appeal No.887 of 2018 2025:KER:9518 -: 8 :- and it was since Mohanan did not take the quarrel that took place on 06.03.2010 seriously, that he did not prefer any complaint in respect of the same. When it was suggested to PW1 that Mohanan, who fell down since he was inebriated, he died due to lack of proper treatment, PW1 responded that he does not know.

9. PW2 is the daughter of Mohanan. Her version in the evidence was that on 06.03.2010 she saw the occurrence in which the accused caused injuries to her father, Mohanan. PW2 also deposed as was deposed by PW1 that there was a verbal altercation between the second accused and Mohanan over the ritual that was being performed in the temple. It was further deposed by PW2 that it was her mother who intervened in the altercation and separated them. It was deposed by PW2 that the first accused namely, the son of the second accused, was not present at that time when the said altercation took place and that later when the first accused returned to his house at about 8.30 p.m., he went behind the house of PW2 and hurled obscene and abusive words at Mohanan and banged on the back window of her house. It was deposed by PW2 that Mohanan then went out of the house and whilst so, accused 1 and 2 beat him repeatedly with pieces of firewood carried by them and when Mohanan fell down on account of the attack, the first accused sat on Crl.Appeal No.887 of 2018 2025:KER:9518 -: 9 :- his body and squeezed his testicles. It was deposed by PW2 that thereupon, accused 1 and 2 stamped Mohanan repeatedly all over his body and that when he attempted to get up, accused 3 and 4 also stamped him, apprehending that he might attack them and that the occurrence lasted for about 45 minutes. It was deposed by PW2 that she and her mother were alone in the house then and that they did not get out of the house, fearing attack on them. According to PW2, at about 10.30 p.m., PW1 and the Councillor, Ramachandran took Mohanan inside the house and that thereupon, all of them took him to the Government Hospital, Paravur. It was deposed by PW2 that on the morning of the following day, Mohanan experienced difficulty in passing urine in the hospital and that when the said fact was brought to the notice of the doctor, they were advised to take him to some other hospital and that they accordingly took him to the General Hospital, Ernakulam. It was the version of PW2 that at the General Hospital, Ernakulam, they were directed to conduct a scan and after perusing the report of the scan conducted, the doctor at the General Hospital, Ernakulam discharged Mohanan with a direction to bring him back after three days, if the ailment persists. It was deposed by PW2 that on the morning of 08.03.2010, Mohanan experienced difficulty in passing urine again and he was taken to Crl.Appeal No.887 of 2018 2025:KER:9518 -: 10 :- the Government Hospital, Paravur and by the time they reached the said hospital, Mohanan had passed away. According to PW2, it is in the background of the light inside their house, the street light as also the kerosene lamp kept at the family house, that she saw the occurrence. It was also clarified by PW2 that the place of occurrence was the front portion of the family house, and that the distance between the house of PW2 and the place of occurrence was hardly 4 to 5 meters. In cross-examination, when it was put to PW2 as to the reason why she did not make any attempt to prevent the attack on her father despite the fact that he was attacked for about 45 minutes, PW2 answered that it was on account of fear. It was also clarified by PW2 in cross-examination that it was by about 11 p.m., that the deceased was taken inside the house. Even though it was admitted by PW2 in cross-examination that the police station was only a 10 minutes walk from Government Hospital, Paravur, they did not complain to the police as her father instructed them not to give any complaint against the second accused who is his own brother. When it was suggested to PW2 that she does not appear to have stated to the police that there was a kerosene lamp at the relevant time in the family house, her answer was that she does not remember. PW2 denied the suggestion of the counsel for the Crl.Appeal No.887 of 2018 2025:KER:9518 -: 11 :- accused that Mohanan, who fell down while being inebriated, died due to lack of proper treatment.

10. PW3 is the mother of Mohanan and the second accused. Even though PW3 turned hostile to the prosecution, she admitted in her evidence that she was present in the family house at the relevant time and that there was a quarrel between Mohanan and the second accused on that day. PW4 is the wife of Mohanan. In chief-examination, PW4 also gave evidence more or less on similar lines as the evidence tendered by PW2. In cross-examination, PW4 admitted that she told the police that she did not take it seriously at first, as her husband was lying in the courtyard uttering something in a disorderly way. PW4 also admitted in cross-examination that she was under the impression that her husband would come back home after sometime and it was only when PW1 called her, she went to the scene of occurrence. As in the case of PW2, PW4 also denied the suggestion of the counsel for the accused that Mohanan, who fell down while being inebriated, died due to lack of proper treatment.

11. PW5 and PW6 are relatives as also neighbours of Mohanan and the accused. Although they were cited by the prosecution to prove the occurrence, they turned hostile. However, both the said witnesses deposed that they heard the verbal Crl.Appeal No.887 of 2018 2025:KER:9518 -: 12 :- altercation that took place in the house of Mohanan on the date of occurrence and the version of PW5 was that it was a usual affair in their house. PW7 is the husband of PW2. PW7 did not see the occurrence and he was examined only to prove the events that took place after Mohanan was taken to the hospital. PW7 gave evidence in tune with the evidence given by PWs 1, 2 and 4 as regards the events that took place after Mohanan was taken to the hospital. PW14 is the wife of PW1. PW14 also deposed that there was a verbal altercation on the relevant day between the second accused and Mohanan. PW13 is the Village Officer who prepared Ext.P7 site plan.

12. PW19 is the doctor attached to Government Hospital, Paravur who examined Mohanan at 1.00 a.m. On 07.03.2010. PW19 deposed that the cause of injury suffered by Mohanan as stated to him was "വ കതർകത തടർന അനജൻ ര ജ മണയ ച ർന മർദ ചത ൽ തവച". According to PW19, the complaint of Mohanan at that time was abdominal pain. It was also deposed by PW19 that he noticed smell of alcohol at the time of examination in the breath of Mohanan. Ext.P10 is the certificate issued by PW19. PW17 is the doctor who treated Mohanan at General Hospital, Ernakulam on 07.03.2010. PW17 deposed that Mohanan was referred from the Government Hospital, Paravur with the history of assault and it was Crl.Appeal No.887 of 2018 2025:KER:9518 -: 13 :- PW17 who directed the patient to take an ultrasound scan. PW12 is the Radiologist who conducted ultrasound scan on Mohanan at 8.00 a.m. on 07.03.2010 and issued Ext.P6 report. The evidence of PW12 was that he did not find any internal injuries in the ultrasound scan. It was clarified by PW12 in his evidence that he had scanned the abdomen as also the pelvis of Mohanan.

13. PW16 was the doctor who conducted the autopsy of the deceased and issued Ext.P8 autopsy report. The following are the ante-mortem injuries noted by PW16 at the time of autopsy:

"1. Scab formed abrasion 4 x 0.1 cm, vertically placed on right side of neck, upper end at lower border of lower jaw and 7 cm outer to midline.

2. Scab formed abrasion 6.5 x 0.1 cm transversely placed on right side of neck, inner end 4 cm outer to midline and 4 cm above the level of clavicle.

3. Scab formed abrasion 3 x 0.5 cm over the outer border of right clavicle, 9 cm outer to midline.

4. Scab formed abrasion 1.7 x 0.2 cm, Vertically placed on right of front of chest, 2 cm below previous injury and 8 cm outer to midline.

5. Superficial contusion on right side of chest 5 x 1 cm, transversely placed, 4.5 cm outer to midline and 18 cm below top-line of shoulder.

6. Multiple tiny scab formed abrasions on back aspects of both hands.

7. Scab formed abrasion 6 x 8 cm on front aspect of left upper arm, lower extent at elbow.

8. Scab formed abrasion 9 x 4 cm obliquely placed on back aspect of left forearm, 4.5 cm above wrist joint.

Crl.Appeal No.887 of 2018

2025:KER:9518 -: 14 :-

9. Abraded contusion 5 x 1.5 cm, transversely placed on the outer middle aspect of left upper arm

10. Multiple tiny scab formed abrasion on front aspect of right knee.

11. Scab formed abrasion 3.5 x 1 cm, transversely placed on front lower aspect of knee.

12. Abrasion 2 x 1 cm on front outer aspect of left scrotum and there was a superficial lacerated wound 2.5 x 0.2 cm with no ante-mortem features, just below the previously mentioned abrasion.

13. Circular scab formed abrasion with a diameter of 4 cm, on the back of right shoulder.

14. Scab formed graze abrasion 13 x 6.5 cm on the back of left shoulder, upper extent 6.5 cm below top line of shoulder.

15. Scab formed abrasion 14 x 6.5 cm on left side of back of chest, 7.5 cm below previous injury

16. Scab formed grazed abrasion 5.5 x 3 cm on outer aspect of left side of abdomen, 19 cm below left axila in the mid axillary line.

17. Scab formed abrasion 1.5 x 1.5 cm over the left side of small of back, 5 cm outer to midline and over the pelvic brim.

18. Scab formed abrasion 5 x 0.5 cm on the midline of back of right lower leg.

19. Contusion 26 x 8 cm, transversely placed, extending in to the muscles of back of chest, dark red in colour, upper extent 2cm below top line of shoulder.

20. Contusion into the muscles of chest 9 x 4 cm on the outer aspect of lower side of right side of chest, seen in the depths of the chest muscle, dark red in colour, inner extent 6 cm outer to midline and upper extent 25 cm below top line of shoulder .

21. The duodenum showed a lacerated wound 2 x 1 cm entering its lumen, in its second part, with feculent material Crl.Appeal No.887 of 2018 2025:KER:9518 -: 15 :- seen to be coming out. There was a small laceration 0.5 x 0.5 cm on the transverse colon near the splenic flexure, entering the lumen of the colon. It was found to be sealed by the greater omentum."

According to PW16, the death occurred on account of multi-organ dysfunction syndrome due to disseminated sepsis originating from fecal peritonitis due to rupture of bowel, consistent with blunt trauma to abdomen. It was also deposed by PW16 that duodenum and transverse colon were ruptured. It was opined by PW16 that duodenum and transverse colon are vital parts of the body and rupture of those parts would result in death in the ordinary course of nature. It was clarified by PW16 that when duodenum is ruptured, digestive enzymes from pancreas and liver and gastric secretions will leak out into peritoneum which may aggravate peritonitis. It was also clarified by PW16 that the ante-mortem injuries found on the body of the deceased could be caused by kicking. In cross- examination, it was stated by PW16 that injury 21 may result in death in the ordinary course of nature, if not properly treated. It was also clarified by PW16 in cross-examination that if the victim was properly treated, there was possibility of survival, and that the victim did not receive proper treatment.

14. It was in the light of the evidence discussed above that the Court of Session arrived at its conclusion. Let us now Crl.Appeal No.887 of 2018 2025:KER:9518 -: 16 :- consider the point. It is seen from the impugned judgment that it is based on the evidence tendered by PW2, the daughter of the deceased, and PW4, the wife of the deceased that the Court of Session came to the conclusion that accused 1 and 2 assaulted the deceased when the deceased came out of his house at about 8.30 p.m. on 06.03.2010 hearing the obscene and abusive words hurled by the first accused. It was also found by the Court of Session based on the medical evidence let in by the prosecution that the assault committed by accused 1 and 2 was the cause of death of the deceased. As noted, the first and foremost argument advanced by the learned counsel for accused 1 and 2 was that the evidence tendered by PWs 2 and 4 is not reliable and trustworthy. The question to be considered, therefore, is whether the evidence tendered by PWs 2 and 4 are acceptable.

15. As noted, the specific case of the prosecution is that at about 8.45 p.m. on 06.03.2010, the first accused went to the house of the deceased along with other accused, hurled abusive words at him and provoked him to come out of the house by banging on the doors and windows of the house; that when the deceased came out of the house, they beat him with wooden rods and when he fell down, the first accused squeezed his testicles and Crl.Appeal No.887 of 2018 2025:KER:9518 -: 17 :- thereupon, the accused beat him and stamped him all over his body, including his abdomen. The pointed question is whether PWs 2 and 4 who were inside the house along with the deceased, at the relevant time, could see the occurrence that took place outside their house. It was admitted by PW2 in her evidence that she and PW4 were alone in the house at the time when the deceased went out and that they did not get out of the house, fearing attack on them. The stand of PW2 that she and her mother did not get out of the house along with the deceased when the accused persons created a scene of terror, does not appear to be a conduct that is expected from the wife and daughter of the deceased in the common course of natural events, especially when the alleged scene of terror was created by the brother of the deceased himself and his son who are residing in the adjoining house. Be that as it may, the occurrence took place in the courtyard of the family house. Of course, the scene of occurrence was only 4 to 5 meters away from the house of the deceased. But, if PWs 2 and 4 had not gotten out of their house, could they see the occurrence from inside the house, is a doubt which the prosecution is expected to clear. There is no explanation from PWs 2 and 4 as to how they could see the occurrence that took place outside their house while they remained inside. As noted, the Crl.Appeal No.887 of 2018 2025:KER:9518 -: 18 :- stand taken by PW2 in this context was that she saw the occurrence in the background of the light inside their house, the street light as also the kerosene lamp kept at the family house. Inasmuch as the occurrence took place in the courtyard of the family house, we fail to understand as to how the same could be seen in the background of the light inside the house of PW2. Even assuming that there was street light at the scene of occurrence and there was a kerosene lamp in the family house, as already noticed, inasmuch as PW2 was remaining inside her house and inasmuch as she has no case that she saw the occurrence when she peeped through the window or door, we are of the view that it is not safe to place reliance on the explanation offered by PW2 as to how she saw the occurrence. That apart, it is the specific case of the prosecution that the occurrence lasted for about 45 minutes. In cross-examination, when PW2 was asked as to the reason why she did not make any attempt to prevent the attack on her father despite the fact that he was attacked for about 45 minutes, the answer given by PW2 was that it was on account of fear. We are unable to accept this explanation as the same is not a conduct expected of from PWs 2 and 4 in the common course of natural events. As noted, it was clarified by PW2 in cross-examination that it was by about 11 p.m. that the deceased Crl.Appeal No.887 of 2018 2025:KER:9518 -: 19 :- was taken inside the house by PW1. In other words, the deceased remained in the courtyard of the family house for about two hours after the occurrence. The prosecution has no case that the accused remained at the scene of occurrence all throughout to prevent anybody from extending help to the deceased. There is no explanation as to the reason why PWs 2 and 4 did not attend to the deceased during that period. Likewise, the explanation offered by PW2 for not having reported the occurrence of such grave nature to the police is that the deceased instructed them not to do so as the second accused is none other than his brother. We are unable to accept the said explanation offered by PW2 as well for, if the occurrence was so grave as narrated by PW2, the same would have certainly been reported to the police, whoever be the assailants. In this context, it is relevant to refer to the evidence given by PW4, the wife of the deceased that she told the police that she had not taken the occurrence seriously at first as her husband was lying in the courtyard uttering something in a disorderly way and that she was under the impression that her husband would come back home after sometime. The relevant portions of the deposition read thus:

               "ഭർ   വ മറ    ക ടന എത" തകച#     പറഞ രനത ന ല ണ ആദ+    ഗ-രവമ #
               ക ണ ത രനത എന ഞ ൻ ചപ ല/സ ചന ട പറഞ രന.    ഭർ    വ എഴചനറ വര എന

കരത. രവ/നൻ വന വ ള ചച5 ഴ ണ ഞ ൻ ത നത, ഒറക എന ക എടക ൻ പറ ല." Crl.Appeal No.887 of 2018

2025:KER:9518 -: 20 :- The said evidence of PW4 is to be appreciated keeping in mind the fact that the deceased was inebriated at the time of the occurrence as clarified by PW19, the doctor who examined the deceased immediately after the occurrence. On an overall appreciation of the evidence, we are of the view that even though it is established beyond reasonable doubt that there was a verbal altercation between the second accused and the deceased at about 7.00 p.m on 06.03.2010 in connection with the customary ritual performed by them during the temple festival, there is no satisfactory evidence as to the events that followed the said altercation, as the evidence tendered by PWs 2 and 4 in this regard is found to be unreliable. The remaining evidence in the case as referred to above is only the evidence tendered by the prosecution to corroborate the oral evidence tendered by PWs 2 and 4. Inasmuch as it is found that the evidence tendered by PWs 2 and 4 is not reliable, the remaining evidence as referred to above will not be of any use to the prosecution. No doubt, something untoward did happen after the verbal altercation. Even if it could be inferred from the facts and circumstances of the case that accused 1 and 2 were involved in the occurrence, in the absence of any acceptable evidence regarding Crl.Appeal No.887 of 2018 2025:KER:9518 -: 21 :- the same, according to us, accused 1 and 2 are entitled to the benefit of doubt.

In the result, the appeal is allowed, setting aside the conviction and sentence of accused 1 and 2. Accused 1 and 2 shall be set at liberty forthwith from the prison concerned, if their continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the prison concerned, where accused 1 and 2 are undergoing incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

ds 28.01.2025

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