Johnson vs State Of Kerala on 18 February, 2019

[Cites 6, Cited by 0]

Kerala High Court

Johnson vs State Of Kerala on 18 February, 2019

Equivalent citations: AIRONLINE 2019 KER 336

This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 5th Additional Sessions Judge, Ernakulam in S.C. No. 90 of 2014 dated 20/09/2014 by which the appellant was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) with a default stipulation of simple imprisonment for one year.

2. The case of the prosecution is that the appellant and the deceased were brothers and were residing together in the house of the deceased situated at Santhom Colony, near Chirakkapadam thodu, Mundanveli kara, Thoppumpady, Rameswaram Village. On 16/07/2013 at about 11.45 P.M., due to previous enmity, the appellant herein inflicted stab injury with the neck of a broken beer bottle twice on the belly and twice on the back of the neck of the deceased George Xavier who was none Crl.Appeal No.119/15 -:3:- other than the brother of the appellant and the injured succumbed to the injuries on 21/07/2013 at hospital and thereby caused his death.

3. Prosecution examined PW1 to PW13 as witnesses, marked documents Exts.P1 to P18 and identified material objects MO1 to MO5. During 313 examination, the appellant denied all evidence tendered against him and pleaded innocence. He filed a detailed written statement under S.313(5) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.'). No evidence is adduced from the side of the defence.

4. Learned counsel appearing for and on behalf of the appellant Sri.S.K.Saju argued that there is no evidence against the appellant in the case. Prosecution case itself is a fabricated one. There is no eye witness to the incident. The alleged dying declaration is not at all believable as it is made by PW1 who is the daughter of the deceased who is a highly interested witness. The appellant is the one who brought the deceased to the hospital. Absolutely there is no legal evidence against the appellant and the Court below erred in arriving at its conclusion. He pleaded for an acquittal.

Crl.Appeal No.119/15

-:4:-

5. On the other hand, the learned Senior Public Prosecutor, Sri.S.U.Nazar argued that the Court below is fully justified in arriving at its conclusion. The dying declaration is made by the deceased to his own daughter and it inspires full confidence. That alone is sufficient to convict the appellant. Moreover, there are medical and other evidence to corroborate the substantive evidence of dying declaration. There is pre- meditation. The injuries were fatal and it shows his intention. There is no space for interference in the matter as the finding of the Court below is just. He submitted to dismiss the appeal.

6. On hearing both sides and perusing records, we are to decide whether the Court below is justified in arriving at its verdict based on the evidence on record. Medical evidence consist of the depositions of PW8, PW7 and PW10. PW8 is the Doctor who treated the victim at Karuvelippady Government Hospital at about 04.50 A.M., on 17/07/2013. She noted the injuries on the victim and issued Ext.P5 wound certificate. She deposed that the victim was brought to hospital by his friends and the appellant herein. It is her version that the victim was conscious and there was smell of alcohol. He told her that there Crl.Appeal No.119/15 -:5:- was a fight with his bother and his brother hit him with a bottle. She further deposed that the injuries noted in Ext.P5 could be caused by using MO1 bottle neck. PW7 Dr. Sandeep Varghese treated the victim at Medical College Hospital, Kottayam. Ext.P4 is the treatment certificate issued by him. He deposed that the victim was admitted in hospital on 17/07/2013 and he died on 21/07/2013. According to him, the injuries were fatal. PW10 is the Doctor who conducted the autopsy of the victim. He issued Ext.P7 post-mortem certificate. He deposed that the following ante- mortem injuries were noted by him during the said examination:

"1. Stapled penetrating wound, 8cm with intervening sutures horizontally placed on the right side of front of chest, inner end touching the midline and 9 cm below the suprasternal notch. It entered into the chest cavity by penetrating the 4th intercostals space for a minimum depth of 4 cm.

2. Stapled penetrating wound, 14cm, horizontally placed on the right side of front of chest, inner end 3cm outer to midline and 16cm below the collar bone. It entered the chest cavity by penetrating the 5 th intercostal space for a minimum depth of 5 cm.

3. Stapled penetrating wound 4.5cm vertical, on the right side of front of abdomen, lower end 2cm outer to umbilicus. It entered the abdominal cavity and transfixed the pyloric end of stomach. The pyloric end Crl.Appeal No.119/15 -:6:- was seen sutured for a length of 2cm with the omentum on both sides, 3cm proximal to the duodenum. The track of the wound was directed backward, upwards and to the left having a minimum depth of 6cm.

4. Sutured wound 2.5x0.5cm oblique on the outer aspect of left side of chest, front lower end 11cm below the front fold of armpit. The wound entered the chest cavity through the 7th intercostals space for a minimum depth of 4cm.

5. Sutured surgical wound 4cm oblique on the right side of chest, upper back end 4 cm below the front fold of armpit.

6. Stapled Laprotomy wound, 24cm, vertical on the front of abdomen in midline, upper end 9cm below the xiphisternum.

7. Surgical drainage wound 2x1cm on the left side of front of abdomen, 12cm outer to umbilicus.

8. Surgical drainage wound 1.5x1cm on the right side of front of abdomen, 12cm outer to umbilicus.

9. Superficial lacerated wound 2x0.5cm oblique on the left side of chest, upper back end 15cm below the front fold of armpit.

10. Superficial lacerated wound 1x0.5cm transverse on the left side of chest, front end 2cm below the above injury No.(9).

11. Infected wound 2x1.8cm on the left side of forehead, 1cm outer to midline and 8cm above the eye brow.

12. Infected wound 1.5x0.5cm on the right side of back of head, 6cm outer to midline and 4cm above the root of neck.

Crl.Appeal No.119/15 -:7:-

13. Stapled wound 2cm vertical on the right side of back of neck 3cm outer to midline and 8cm above the root of neck.

14. Superficial abrasion 2.5x0.5cm on the back of neck in midline, 3cm above the root of neck.

15. Stapled wound, 7cm horizontally placed on the left side of back of head, inner end 2cm outer to midline and 6cm above the root of neck.

16. Stapled wound, 3cm oblique on the left side of back of trunk, lower inner end 4cm outer to midline and 10cm above the root of neck.

17. Stapled wound, 3 cm oblique on the left side of back of trunk, lower inner end 12cm outer to midline and 23cm below the top of shoulder.

18. Stapled wound, 3cm on the left side of back of trunk, 9cm outer to midline and 20cm below the top of shoulder.

19. Linear abrasion 10cm, oblique on the left side of back of trunk upper inner end 5cm outer to midline and 8cm above the top of hip bone.

20. Stapled wound 1.5cm, on the left side of back of trunk, 12cm outer to midline and 8cm above top of hip bone.

21. Abrasion 1.5x0.2cm on the left side of back of trunk, 8cm outer to midline and 23cm below the top of shoulder. All the stapled wound showed adherent edges, all the above abrasions were covered with brownish adherent scab".

7. According to PW10, the cause of death of the victim was penetrating injuries sustained to chest and abdomen i.e., Crl.Appeal No.119/15 -:8:- injury Nos. 1 to 4. He also stated that the said injuries could be caused by MO1. Ext.P3 is the inquest report prepared in connection with the crime. All these evidence prove beyond reasonable doubt that the trial Court is justified in its conclusion that the death of the victim was homicidal. Only question to be decided is whether the injuries that resulted in the death of the victim was caused by the appellant herein and if so, whether the act amount to an offence under Section 302 of IPC as held by the trial Court.

8. On perusal, it is seen that the Court below primarily based its finding on the evidence of dying declaration adduced by PW3 and PW1.

9. The evidence adduced in the case, in short, are as under: PW1 is the daughter of the deceased. She gave Ext.P1 F.I. Statement. She deposed that she visited her father in the operation theatre of Kottayam Medical College hospital. At that time, he stated to her in unclear terms that the appellant/accused has inflicted stab injuries on his body. She also stated that both the appellant and the deceased were in the habit of picking up quarrel after consuming liquor. PW2 is a neighbour of the Crl.Appeal No.119/15 -:9:- appellant. He is an attestor to Ext.P2 scene mahazar. He also supported the prosecution regarding the recovery of MO1 series to MO4 articles at the instance of the appellant/accused. PW3 is another independent witness of the locality. He deposed that on 18/07/2013 at about 04.15 A.M., he found the victim in the road with bleeding injuries. It is the version of PW3 that on seeing him, the injured told him that his younger brother stabbed him. He also requested PW3 to take him to hospital. Accordingly, PW3 and the appellant/accused with the assistance of three police men who were members of night patrol party had taken the victim to the hospital in the police jeep. He also deposed that that he heard the appellant and the victim picking up quarrel. PW4 who is the son-in-law of the victim deposed that he witnessed the victim telling to PW1 as to how he sustained the injuries. PW5 is the younger brother of the deceased. He deposed that on the date of incident, the appellant was residing with the victim at the house where the incident took place. PW6 is an attestor to Ext.P3 inquest report. PW9 is the Special Village Officer who prepared Ext.P6 site plan. PW11 is the Senior Civil Police Officer of Thoppumpady Police Station who on direction issued by PW12 the Crl.Appeal No.119/15 -:10:- SHO of Thoppumpady Police Station, recorded Ext.P1 FIS given by PW1. Ext.P8 is the FIR. PW13 is the C.I. of Police who conducted the investigation and laid the final report before Court on completion of investigation. Based on Ext.P2(a) confession of the appellant, he recovered MO1 series to MO4 at the instance of the appellant. Ext.P2 is the scene cum recovery mahazar for the same. He forwarded the MOs to Court along with Exts.P9 and P10 151(A) forms. Ext.P11 series are the arrest memo and custody memo of the appellant and Ext.P12 is the remand report. Ext.P14 is the report for altering the charge to 302 of IPC. He conducted the inquest on 21/07/2013 and prepared Ext.P3 report. MO5 cotton gauze is collected from the body of the deceased by PW10 and it was seized by PW13 and forwarded the same to Court along with Ext.P10 151(A) form. Ext.P15 is the forwarding note requesting the Court to forward material objects for chemical examination. Ext.P17 is the chemical examination report.

10. There is no direct evidence in the case. Prosecution relies on certain circumstances to prove the guilt of the appellant.

11. Alleged dying declaration is made by the victim firstly to PW3 and later to PW1 his daughter. Whether their version is Crl.Appeal No.119/15 -:11:- believable or not is the crucial question. At the outset, it can be seen that the appellant in his written statement submitted under Section 313(5) of Cr.P.C., admitted his presence in the house of the victim on the date of incident though he denied the occurrence of quarrel and other incriminating circumstances. Evidence of PW8 would show that the victim was taken to Karuvelipadi Taluk Hospital at about 4.50 A.M. and at that time he was conscious. The evidence of PW3 is categoric and he stated that the victim told him that his younger brother inflicted injuries on him. He also deposed that he heard the appellant and the victim quarrelling each other. Nothing is brought in evidence to discredit the version of PW3 or his credibility. He is an independent witness. PW1's evidence also shows that her father told her while in operation theatre that it was the appellant herein who hit him. It amply corroborates the version of PW3. Medical evidence is fully supporting the prosecution case. MO1 series of broken beer bottle was recovered at the instance of the appellant based on his confession statement Ext.P2(a). Ext.P17 FSL report would show that MO1 series broken beer bottle and other items were stained with human blood belonging to group B which is the Crl.Appeal No.119/15 -:12:- blood group of the deceased. All these evidence clearly establish that it is the appellant who inflicted the fatal injuries on the victim.

12. Only question remaining is whether the material on record would show that the act of the appellant would attract S.302 of I.P.C. as held by the lower Court. Available evidence clearly show that the appellant and the deceased were in the habit of consuming alcohol and on the date of incident, they did the same and quarrelled each other. It is also in evidence that the appellant also accompanied others while taking the injured to the hospital. Prosecution did not prove motive for the crime. Apparently, nothing is brought in evidence to show that there was pre-meditation or intention on the part of the appellant to kill his brother. Prosecution is yet to prove how the incident started and who gave the provocation and under what circumstance the injury was inflicted on the victim. That benefit must go to the appellant in a trial of grave crime like murder. We are of the view that the Court below is justified in its conclusion about the guilt of the appellant except on this point.

In the result, the appeal is partly allowed. The conviction Crl.Appeal No.119/15 -:13:- and sentence passed by the trial Court on the appellant under Section 302 of I.P.C. is hereby set aside. He is found guilty for offence punishable under Section 304 Part II of I.P.C. and sentenced to undergo rigorous imprisonment for six years. The appellant is entitled to set off under S.428 for the period which he had already undergone during, pre or post trial stages of the case.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                            A.M.BABU

Rp               //True Copy//                JUDGE

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