Kerala High Court
Madappen Muhassin vs State Of Kerala on 25 May, 2009
Author: M.N. Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 838 of 2002(M)
1. MADAPPEN MUHASSIN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/05/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 838 OF 2002
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Dated this the 25th day of May, 2009.
J U D G M E N T
This appeal is preferred against the conviction and sentence passed in S.C.17/01 of the 3rd Addl. Sessions Judge, Fast Tract Court-I, Thrissur. The Court below found the accused guilty and convicted him u/s 325 IPC and directed him to undergo rigorous imprisonment for a period of four years and set off was allowed. It is against that decision the present appeal is preferred. The brief facts would reveal that both the deceased Sivaji and the accused Muhassin were employees in a hotel called Royal Hotel, Guruvayoor. At the early hours on 5.5.1997 there was a verbal exchange of words between Sivaji and the accused. The accused called Sivaji as 'aunt' and Sivaji in turn called the accused as 'dog'. Then there ensued a fight and deceased Sivaji was kicked on his chest which resulted in a fall on a cement floor with a banging sound. He was admitted in the Thahani Hospital to start with and referred to Crl. Appeal NO. 838 OF 2002 -:2:- the Medical College Hospital, Thrissur where he died at 7 a.m. on 5.5.1997. The law was set in motion by the giving of Ext.P1 statement by PW2 in this case. The police after investigation charge sheeted the accused and the Court also framed charge u/s 302 IPC. PWs.1 to 14 were examined. Exts.P1 to P12 and MO1 and MO2 were marked. The Court found that the accused had not committed the offence u/s 302, 304(II) IPC or 326 IPC but held that the offence will come under the ambit of S.325 IPC and therefore convicted the accused and sentenced him to undergo simple imprisonment for a period of four years. It is against that verdict this appeal has been preferred.
2. The point that arises for determination is whether there is any sufficient ground to hold that the Court below has arrived at an incorrect decision by convicting the accused u/s 325 IPC.
Points:
3. As stated by me earlier the unfortunate incident resulted in the death of a co-worker. According to the Crl. Appeal NO. 838 OF 2002 -:3:- prosecution at 0.45 a.m. on 5.5.1997 after the closure of the hotel where deceased Sivaji and the accused were working they decided to sleep on the cement floored portion of the hotel. It is submitted that at that time the accused called Sivaji by the word 'aunt' and the accused returned it with the word 'dog'. It is submitted that both these persons were fighting in the form of a karatte fight as disclosed in Ext.P1. It is also stated that the accused was beaten by Sivaji and Sivaji was also beaten and later the accused fisted on the chest of Sivaji which resulted in the fatal fall that resulted in his end.
The Court below analysed the evidence of PW1 and the medical evidence to arrive at a decision that the evidence u/s 325 has been made out.
4. The learned counsel for the appellant contends before me that there are different versions given by PW1 in his First Information Statement and evidence and therefore his evidence is not acceptable and further nothing is available before the Court to find the accused guilty u/s 325. Learned counsel had taken me through the entire evidence of PW1 and Crl. Appeal NO. 838 OF 2002 -:4:- I find from the evidence of PW1 that he has deposed before Court that the accused had kicked on the chest of the deceased Sivaji which resulted in his fall in a cement platform with a cracking sound which made him unconscious instantaneously and he had vomited. In the cross-examination also he had deposed before the Court in the very same line but it is seen that in the first hospital where Mr.Sivaji was admitted an impression was given as if it is a poison case. The Doctor did not conduct any investigation and finding the serious condition of the person referred him to the Medical College Hospital from where the deceased breathed his last. The accused also in the process had sustained injuries, that is, a contusion over the upper lip in the inner margin of a size of 1 c.m. x 0.5 c.m. I am giving these particulars only for the purpose of deciding regarding the argument raised by the learned counsel on self-defence.
5. First of all let me find out what is the cause of death of deceased Sivaji. Ext.P9 is the postmortem report. The Doctor who had conducted the postmortem is examined Crl. Appeal NO. 838 OF 2002 -:5:- as PW10 and he had spoken in line with the report. It can be seen from the postmortem report that the deceased Sivaji had two long abrasions on the left side of the chest and one abrasion on the lower eye-lid left. On dissection it was found that there was a fissured fracture 18 c.m. long extending from the occipital bone to the left temporal bone and to the anterior cranial fossa left side. There was hemorrhage on the parietal lobe and contusion on the left temporal lobe. The Doctor has opined that the deceased died due to the head injury. As PW1 he had also deposed that there was no poison which has resulted in his death. The Doctor would submit that the loss of consciousness could be on account of the sub-archanoid hemorrhage. In the cross-examination pin-pointed questions had been put to him regarding the poison which is negatived by him. He had very clearly deposed that when a person falls back, there need not be any contusion on the skull. He has admitted that there was no external or internal contusion over the scalp. So the reason for the death is the internal injury that has been caused to Sivaji on his head which includes a Crl. Appeal NO. 838 OF 2002 -:6:- fracture of 18 c.m. long. So there cannot be any doubt regarding the cause of death of deceased Sivaji. Now the question arises is whether the accused can be attributed the reason for causing this injury. If it is in the positive and if it is not in the exercise of an ordinary private defence then it has to be held that that the accused has committed the offence at least under one of the provisions under the IPC. The learned counsel for the appellant had brought to my notice the decision of the Division Bench of this Court reported in Nihas v. State of Kerala (2005 (2) KLT 173). In that decision this Court has held that a person exercising right of private defence cannot weigh in golden scales, in the spur of the moment and in the heat of passion, the number of injuries required to avert further threat to the person and properties; that too during night. It was a case where there were about 40 injuries in the body of the deceased. Now from the materials available in this case with the evidence of PW1 it can be seen that both these persons namely deceased and the accused started a wordily quarrel which developed into a Crl. Appeal NO. 838 OF 2002 -:7:- bodily fight in the form of karatte and the injury sustained by the accused is of superficial nature and it is only a contusion on the lip of a very narrow dimension. But it can be seen from the materials that he had inflicted a kick on the chest of the deceased Sivaji and the fact that there was a sound when he fell down shows the speed at which he had fallen which will indicate the acceleration of the kick inflicted by the accused. So it is crystal clear that though unknowingly the act of the accused had been very severe and that had led to the calamity. The evidence of the Doctor PW10 coupled with the postmortem report Ext.P10 proves this factor.
6. As rightly discussed by the learned Sessions Judge there was no intention for this man to murder Sivaji. At the most, the unfortunate incident had taken place on account of the overt act which resulted in the fall of Sivaji resulting in serious injury which led to his death. The learned counsel's argument that S.325 IPC cannot be attracted cannot be accepted for the following reasons.
Crl. Appeal NO. 838 OF 2002 -:8:-
7. S.325 IPC deals with a situation where a grievous hurt is caused without the help of any instrument. Here there is a grievous hurt in the form of 18 c.m. long fracture and it was visible only on postmortem examination for the reason that the impact of the head injury resulted in the death of the person within hours from the date of occurrence. So there was a grievous hurt on the person and therefore the Court below was perfectly right in holding that the accused has committed the offence u/s 325 IPC.
8. Lastly, learned counsel would contend that the accused is a very young man. He did not have the intention at all to kill a person and the wordily quarrel led to an unfortunate situation and therefore in case of confirming the guilt leniency must be shown in sentencing him. I heard the learned prosecutor also. The learned prosecutor would opine that only a reasonable sentence has been granted. While weighing the sentence the Court below has recorded about the family back ground of the accused that he has also got unmarried sisters and that he is only a coolie by profession.
Crl. Appeal NO. 838 OF 2002 -:9:- From these discussions it is clear that there was no deliberate intention on the part of the accused to put an end of the life of Sivaji. So in such situation I am inclined to take a lenient view by reducing the sentence of four years imprisonment to a period of one year and a further direction is given to the accused to pay a fine of Rs.25,000/- which would be disbursed to the legal representatives of Sivaji as envisaged u/s 357(1) Cr.P.C. In the result the appeal is disposed of as follows.
(1) The finding of guilt u/s 325 IPC is confirmed. (2) The sentence is modified and the accused is directed to undergo rigorous imprisonment for a period one year and to pay a fine of Rs.25,000/-. The fine on realisation be disbursed to the legal representatives of deceased Sivaji as per S.357(I) Cr.P.C. and the lower Court shall execute the sentence.
M.N. KRISHNAN, JUDGE.
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Crl. Appeal NO. 838 OF 2002 -:10:- M.N. KRISHNAN, J.
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