Kerala High Court
Biju Kumar vs State Of Kerala on 12 December, 2019
Equivalent citations: AIRONLINE 2019 KER 823
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA,
1941
CRL.A.No.1073 OF 2015
AGAINST THE JUDGMENT IN SC 1109/2011 DATED 21-07-2015 OF
ADDITIONAL SESSIONS COURT, NEYYATTINKARA.
CP NO.111/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
NEYYATINKARA
CRIME NO.264/2005 OF NEYYATTINKARA POLICE STATION ,
THIRUVANANTHAPURAM.
APPELLANT/ACCUSED:
BIJU KUMAR, S/O SREEDHARAN NADR,
PULICHYMAVUNINNA VEEDU (ON RENT),
MANJAKODE, VENPAKAL DESOM,
ATHIYANNOOR VILLAGE.
BY ADVS.
SRI.RENJITH B.MARAR
SMT.RESHMI JACOB
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE CIRCLE INSPECTOR OF POLICE,
NEYYATTINKARA, THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM - 682 031.
BY SENIOR PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.1073 of 2015 2
JUDGMENT
Dated this the 12th day of December 2019 A.HARIPRASAD, J Heard the learned counsel for appellant and the learned Senior Public Prosecutor.
2. Appellant is the first accused in Crime No.264 of 2005 of Neyyattinkara Police Station registered for offences punishable under Sections 449, 382, 201 and 302 r/w Section 34 of the Indian Penal Code, 1860 (in short 'I.P.C'). The second accused in the crime absconded during investigation stage and he could not be apprehended. The appellant alone stood trial for the aforementioned offences in Sessions Case No.1109 of 2011 before the Additional Sessions Judge, Neyyattinkara.
3. Prosecution case in brief is that Rosamma, a retired teacher and septuagenarian spinster was staying alone in her house. She was found Crl.Appeal No.1073 of 2015 3 murdered during the night between 02-04-2005 and 03-04-2005. It was also revealed that her gold ornaments valued at about Rs.35,000/- and cash amounting to Rs.50,000/- were robbed. It is the allegation that the appellant and the other absconding accused trespassed into the house and caused the death of Rosamma in order to commit theft. Thereafter, they caused disappearance of evidence.
4. In order to substantiate the case, prosecution examined PW's 1 to 25 and marked Exts.P1 to P35. On the defence side, DW's 1 and 2 were examined and Exts.D1 to D4 marked. DW1 is the appellant himself examined under Section 315 Cr.P.C. After considering the evidence on record, the trial court entered conviction on the appellant under Sections 302, 457, 392 and 201 I.P.C and awarded imprisonment for life under Section 302 I.P.C, ten years rigorous imprisonment and fine of Rs.10,000/- under Section 457 I.P.C, seven years rigorous imprisonment and fine of Crl.Appeal No.1073 of 2015 4 Rs.10,000/- under Section 392 I.P.C and five years rigorous imprisonment and fine of Rs.5,000/- under Section 201 I.P.C. It was also directed that the substantive sentence of rigorous imprisonment of all terms shall run concurrently. Default sentences for non payment of fine are also prescribed.
5. Learned counsel for the appellant contended that the prosecution evidence, if taken together, will not establish any of the offences alleged against the appellant. It is also contended that going by Ext.P16 post-mortem certificate, proved through PW16, it will not establish the prosecution case that the appellant was responsible for the death of Rosamma. In Ext.P16, it is pointed out, PW16 has opined that the post- mortem findings were consistent with the death due to the effect of blunt force applied around the nose and mouth. The ante mortem injuries noted in Ext.P16 reads as follows :
Crl.Appeal No.1073 of 2015 5
1. Contusion 3 x 1 x 0.5 cm on the right side of top of head 12 cm above top of ear. Skull, dura appeared normal. Brain was congested.
2. Lacerated wound 0.8 x 0.2 x 0.3 cm on the inner aspect of middle of lower lip, corresponding to the central incisor tooth.
3. Lacerated wound 0.2 x 0.2 x 0.1 cm on the left angle of lower lip.
4. Multiple lacerated wound 0.1 x 0.1 x 0.1 cm to 0.2 x 0.1 x 0.1 cm over an area 2 x 0.5 cm on the inner aspect of right side of upper lip.
5. Abrasion 0.5 x 0.3 cm on the left side of bridge of nose.
0.5 cm outer to midline and 2 cm below its root.
6. Abrasion 3.5 x 1 cm on the front of right knee.
7. Abrasion 1 x 0.8 cm on the outer aspect of left knee.
8. Healing wound 1 x 2 x 0.8 cm on the outer prominence of right ankle.
9. Abrasion 2 x 1 cm on the inner aspect of right wrist.
It is contended that nowhere in the post-mortem certificate, PW16 has Crl.Appeal No.1073 of 2015 6 mentioned that the death was due to asphyxiation.
6. Per contra, the prosecutor pointed out that from a question put in the cross examination of PW16, his answer would probabilise that the death was due to asphyxiation. However, that aspect was not seriously considered by the trial court.
7. Apart from that, we find certain glaring incongruities amounting to illegality in the framing of charge and conviction entered by the trial court after appreciating the evidence. The charge framed by the court reads as follows :
" Biju Kumar, S/o Sreedharan Nadar, the accused in the above case, as under :
That you along with your friend Pramod @ Pramod Kumar, who has not been apprehended so far, committed house breaking by night into the residence by name Manjakkodu Mele Puthen Veedu of Athiyannur Grama Panchayat with House Number Crl.Appeal No.1073 of 2015 7 VII/541 of deceased Rosamma, a spinster aged 72 years with iron bar, cutting player and torch at about 12 midnight in the night between 2-4-2005 and 3-4-2005, by getting the inner doors of that house opened by the above Pramod Kumar who caused his entry to the house by removing four roof tiles on the northern portion of that house, and you dismantled the lock on the grill gate in the middle portion of the southern verandah making use of an iron bar, and when the above said Rosamma woke up and came from her bed room on the north-western portion of the house you along with the above said Pramod Kumar forcefully made her lay on the floor of the room on the middle portion of the house and smothered her with a coloured dhothi (kaily) and pressed her head forcefully towards the floor and inflicted big and small abrasions, wounds and contusions below the knees, right side of the head, inner aspects of lips and lower lip, right side upper lip, left portion of the nose and inner aspect of Crl.Appeal No.1073 of 2015 8 right wrist, and thus caused the death of the above said Rosamma as a result of the blunt force applied around nose and mouth and thereafter committed theft of various gold ornaments worth Rs.35,000/- including those worn by the deceased and kept inside the Almirah, and also cash Rs.50,000/- and thereafter caused the destruction of evidence by disposing the iron bar in the pond near to the house of the deceased and thereby committed the offence u/ss. 449, 382, 201 & 302 I.P.C within the cognizance of this Court, and, I hereby direct that you be charged with the aforesaid offences and tried before this Court."
8. After trial, the court thought it fit to convict the appellant under Section 457 I.P.C instead of Section 449 I.P.C. Likewise, instead of Section 382 I.P.C, the court convicted the appellant under Section 392 I.P.C. It is also pertinent to note that no charge under Section 394 I.P.C was framed on the basis of the material placed before it and therefore no trial Crl.Appeal No.1073 of 2015 9 has happened in that regard.
9. As pointed out by the learned counsel for the appellant, Section 457 I.P.C per se cannot be regarded as a cognate offence or a lesser offence of Section 449 I.P.C. Similarly, Section 392 I.P.C also cannot be regarded as a lesser offence or cognate offence of Section 382 I.P.C.
10. We shall extract the Sections in the chronological order :
" 449. House-trespass in order to commit offence punishable with death whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.
382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft Whoever commits theft, having made preparation for causing death, or hurt or restraint, or fear of death or of hurt, Crl.Appeal No.1073 of 2015 10 or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
392. Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, Crl.Appeal No.1073 of 2015 11 if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years."
11. From the above excerptions, it will be clear that in order to attract Section 449 I.P.C, it must be first a house-trespass as defined in Section 442 I.P.C and a house-trespass so effected must be in order to commit offence punishable with death. Section 457 I.P.C is lurking house- trespass or house-breaking by night in order to commit offence punishable with imprisonment. As mentioned above, we will find the definition of house-trespass in Section 442 I.P.C. Similarly, lurking house-trespass is defined in Section 443 I.P.C and lurking house-trespass by night is defined in Section 444 I.P.C. None of the ingredients of these provisions was elucidated in the charge framed by the court. Therefore, there is a serious legal infirmity in the conviction awarded by the courts below on the appellant.
12. Coming to Sections 382 and 392 I.P.C, we find the following Crl.Appeal No.1073 of 2015 12 glaring illegalities. Section 382 I.P.C deals with theft after preparation made for causing death, hurt or restraint in order to the committing of the theft. Section 392 I.P.C deals with punishment for robbery. Robbery is defined in Section 390 I.P.C. Gist of prosecution allegation would show that this is a case where the accused committed robbery amounting to theft, which is defined in first part of Section 390 I.P.C. It is reads as follows :
" When theft is robbery : Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
13. On a plain reading of Sections 382 and 392 I.P.C with reference to Section 390 I.P.C, we find the ingredients to be alleged and Crl.Appeal No.1073 of 2015 13 proved are entirely different. Therefore, the conviction of the appellant under Section 392 I.P.C, after framing charge under Section 382 I.P.C, appears to be legally unsound.
Having regard to these legal infirmities in the process of trial, we find it difficult to substantiate the impugned judgment. Without making any observation regarding merit of the matter, we find that the appeal has to be allowed only on the aforementioned legal issues. We are of the view that there was no fair trial from the perspective of both sides. We are also of the view that the accused must be specifically told as to what are the charges that he has to face and he should be given a fair opportunity to defend his case.
In the result, the appeal is allowed.
Conviction of sentence imposed on the appellant is set aside. The matter is remanded back to the trial court for framing proper Crl.Appeal No.1073 of 2015 14 charge and a denova trial. The trial court shall consider re framing of the charges based on the materials available in the records and after framing charges, the prosecution and the accused/appellant should be given full opportunity to adduce fresh evidence. After considering the charge and materials placed on record, including the materials already collected in this case, the trial court shall dispose of the matter on merits within a period of six months.
In the meantime, the appellant shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the trial court. The appellant shall report before the Station House Officer, Neyyattinkara Police Station on first Sunday of every month until trial is over.
As pointed out by the learned counsel for the appellant we make it clear that in case the appellant stands convicted for any offence, the period Crl.Appeal No.1073 of 2015 15 already undergone by him after the conviction in this case shall be considered for set off under Section 428 Cr.P.C.
The court below shall dispose of the matter untrammelled by any of the observations contained in this judgment.
The accused shall appear before the trial court on 3rd January, 2020. All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.
N.ANIL KUMAR, JUDGE amk