Kerala High Court
Vijayan Pillai vs State Of Kerala on 13 July, 2012
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934
CRL.A.No. 753 of 2009 ( )
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SC.384/2005 of ADDL.SESSIONS COURT FAST TRACK(ADHOC),
MAVELIKKARA
CP.145/2004 of J.M.F.C.-I, MAVELIKKARA
APPELLANT(S)/IST ACCUSED:
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VIJAYAN PILLAI, S/O. NARAYANA PILLAI,
MANJU BHAVAN, VETTIYAR MURI, VETTIYAR VILLAGE,
MAVELIKKARA.
BY ADVS.SRI.R.BINDU (SASTHAMANGALAM)
SRI.M.SUNILKUMAR
RESPONDENT(S)/COMPLAINANT - STATE:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M. SASIDHARAN NAMBIAR &
P.BHAVADASAN, JJ.
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CRL.APPEAL No. 753 of 2009
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Dated this the 13th day of July, 2012.
JUDGMENT
Bhavadasan, J.
A boundary dispute between the two families snow balled into an assault resulting in the death of Lalitha Kumari, who is the daughter of P.Ws. 1 and 2, and landing the accused persons in the dock having to face trial for the offences punishable under Sections 451, 323 and 302 read with Section 34 of the Indian Penal Code. 2nd and 3rd accused were acquitted while the first accused was less fortunate. He was found guilty of the offences punishable under Sections 451, 323 and 302 I.P.C. and he was convicted and sentenced to rigorous imprisonment for six Crl.Appeal.753/2009.
2months for the offence punishable under Section 323 I.P.C. and to pay fine of Rs.500/- and in default of payment of which to undergo imprisonment for 15 days. For the offence punishable under Section 451 of I.P.C., he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.2,000/-, and in default of payment of which to undergo imprisonment for one month. For the offence punishable under Section 302 I.P.C., he was sentenced to undergo imprisonment for life and to pay fine of Rs.1,00,000/-, and in default of payment of which to undergo imprisonment for six months. The sentences were directed to run concurrently and set off as per law was allowed.
2. The incident which gave rise to this case occurred on 10.1.2004 in the house of P.W.1. P.Ws. 1, 2, deceased Lalitha Kumari, who is the married daughter of P.Ws. 1and 2, and Crl.Appeal.753/2009.
3the son of P.W.1 were residing together. On the date of the incident, it is alleged that at about 7.15 p.m. the accused persons trespassed into the courtyard of the house of P.W.1 and called out the deceased. The prosecution allegation is that accused Nos.1 and 2 forced themselves into the house of P.W.1 and pulled deceased Lalitha Kumari by her hair and threw her down on the ground. Thereafter she was pulled outside the house and it is alleged that her head was hit against the wall by the first accused. When P.W.1 went to the rescue of her daughter, she was also attacked. Further allegation is that hearing the commotion when P.W.2 and his son came to the rescue of P.W.1 and Lalitha Kumari, they were also attacked. When people gathered at the spot, the accused left the place. P.Ws.1, 2, the deceased and the son of P.Ws.1 and 2 were taken to the Crl.Appeal.753/2009.
4Government Hospital, Mavelikkara. P.W.7 had examined deceased Lalitha Kumari and prepared Ext.P4 wound certificate. P.W.7 had also examined P.W.1 and prepared Ext.P5 wound certificate. P.W.10, the doctor of the same hospital had examined P.W.2 and prepared Ext.P7 wound certificate. P.W.10 had examined Rajesh Kumar, the son of P.Ws.1 and 2, and prepared Ext.P8 wound certificate. It is alleged that Lalitha Kumari and P.W.1 were thereafter referred to the Medical College Hospital, Alappuzha for better management and Lalitha Kumari breathed her last in the Medical College Hospital on 11.4.2004 at about 2 a.m. In the meanwhile, on getting information about the incident, P.W.14, finding that the injured had been removed to the Medical College Hospital went to the Medical College Hospital and recorded Ext.P1 First Information Statement Crl.Appeal.753/2009.
5said to have been furnished by P.W.1. P.W.16, the Sub Inspector, Kurathikadu Police Station on receipt of Ext.P1 registered Crime No.10 of 2004 for the offences punishable under Sections 451 and 323 read with Section 34 I.P.C. as per Ext.P12 F.I.R. He then proceeded to the scene of occurrence and prepared Ext.P6 scene mahazar. Learning that while undergoing treatment at Medical College Hospital, Lalitha Kumari breathed her last, investigation was taken over by P.W.16, who filed Ext.P13 report incorporating the offence under Section 302 I.P.C. He went to the Medical College Hospital and conducted inquest over the body of Lalitha Kumari and prepared Ext.P3 inquest report. He seized the clothes found on the body of Lalitha Kumari and marked as M.Os. 1 and 2. He arrested the accused and had the materials collected during the investigation sent for Crl.Appeal.753/2009.
6chemical examination. He recorded the statements of the witnesses, completed investigation and laid charge before court.
3. The court, before which final report was laid, took cognizance of the offence. Finding that the case is exclusively triable by a court of sessions committed the case to the Sessions Court, Alappuzha for trial and disposal. The said court made over the case to the Additional Sessions Court, Mavelikkara for trial and disposal.
4. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Sections 451, 323 ad 302 read with Section 34 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 17 examined and Exts.P1 to P20 marked. M.Os. 1 and 2 were Crl.Appeal.753/2009.
7got identified and marked. After the close of the prosecution evidence the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. The first accused, who was convicted, took the stand that at the relevant time he was at his house and his son was not at home. According to him, at that time, his wife, namely, the second accused, was returning home after purchasing provisions. When she reached in front of the house of P.W.1, P.Ws. 1 and 2, the deceased and their son Rajesh Kumar attacked his wife and she was pushed down and beaten. Hearing her cries, neighbours gathered at the spot. There was a scuffle thereafter and he does not know what actually transpired then.
Crl.Appeal.753/2009.
8
5. Finding that the accused cannot be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. The accused examined D.W.1 and had Exts.D1 to D2(a) marked. On an evaluation of the evidence in the case, the trial court came to the conclusion that the prosecution had miserably failed to establish any overt act as against accused Nos.2 and 3, and therefore acquitted them of all charges. Accused No.1 was found guilty of the offences punishable under Sections 451, 323 and 302 I.P.C. and convicted and sentenced him as already mentioned.
6. Learned counsel appearing for the appellant pointed out that the court below has not analysed the evidence in the proper perspective and has acted mechanically especially in accepting the evidence of P.Ws.1 to 5. Learned counsel went on to point out Crl.Appeal.753/2009.
9that a close look at the evidence of P.Ws. 1 to 5 would show that they have no consistent version regarding the incident. The inconsistencies and contradictions in their evidence would make their evidence vulnerable. Emphasis was laid on the fact that admittedly the deceased was taken to the Government Hospital, Mavelikkara. True, the records from the Government Hospital, Mavelikkara were produced through P.W.15. Learned counsel went on to point out that the circumstances under which the deceased was transferred from the Government Hospital, Mavelikkara to the Medical College Hospital, Alappuza was not mentioned in the records and the prosecution has also not produced the records of treatment relating to the deceased in the Medical College, Alappuzha and therefore it is not possible to come to the conclusion that the deceased died due to the Crl.Appeal.753/2009.
10injuries alleged to have been suffered in the incident. It is also pointed out that the evidence of D.W.1 has not been properly appreciated and had it been so done, it could have been found that the incident has not occurred as alleged by the prosecution.
7. Learned counsel went on to point out that at any rate, the offence cannot fall under Section 302 I.P.C. For the above proposition, learned counsel relied on the decision reported in Thomas v. State of Kerala (1991 KHC 392). Learned counsel went on to point out that by no stretch of imagination, it can be said that, even assuming what the prosecution says is true, the first accused has committed offence punishable under Section 302 I.P.C., since the injury sustained is not sufficient in the ordinary course of nature to cause death of the victim. Hence according to Crl.Appeal.753/2009.
11the learned counsel, the accused can be convicted only under Section 323 I.P.C. and the finding under Section 302 I.P.C. cannot be sustained.
8. Learned Public Prosecutor contended that the court below has analysed the evidence of P.Ws.1 to 3 meticulously and has come to the conclusion that the incident has occurred as alleged by the prosecution. According to the learned Public Prosecutor, true, there may be minor inconsistencies and contradictions in the evidence of P.Ws. 1 to 3, but they are not sufficient to discard their evidence and it can be found that the incident took place in the courtyard of the house of P.W.1. The defence version has been considered by the court below and found to be unacceptable. According to the learned Public Prosecutor, there is no reason to doubt the version given by P.Ws. 1 to 5 and Crl.Appeal.753/2009.
12their evidence stand scrutiny. Learned Public Prosecutor went on to point out that the postmortem certificate taken along with the evidence of P.W.11 clearly show that the death was as a result of the injury sustained by the deceased due to the act committed by the first accused. According to the learned Public Prosecutor the act of deliberately hitting the head on the wall must necessarily show that the first accused has the necessary intention to cause death or atleast the knowledge that causing that injury shall be sufficient in the ordinary course of nature to cause death. According to the learned Public Prosecutor,it is this fact which had persuaded the court below to come to the conclusion that offence under Section 302 I.P.C. is attracted and there is no reason to take a different view. Crl.Appeal.753/2009.
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9. The evidence of the incident is given by P.Ws.1 to 5. Among them, P.Ws. 1 and 2 are injured. Ext.P1 has been furnished by P.W.1 from the Medical College Hospital, Alappuzha. Going by the version given by P.W.1, while she and deceased Lalitha Kumari were in the prayer room, accused Nos. 1 and 2 are alleged to have come to the courtyard of her house and called Lalitha Kumari out of the house. Soon thereafter, accused Nos.1 and 2 are alleged to have forced themselves into the house and pulled Lalitha Kumari by her hair and threw her on the ground. P.W.1 would say that when she went to the rescue of her daughter, she was also attacked. She would further say that thereafter the first accused, while Lalitha Kumari tried to stand up, caught hold of her hair and dashed her head on the wall. Going by the evidence of P.W.1, it would appear Crl.Appeal.753/2009.
14that at that time P.W.2 had come to the house. Seeing the arrival of P.W.2, according to P.W.1, attack was directed towards him also. Their son Rajesh Kumar had also come to the place and he too was also attacked.
10. P.W.2 would say that hearing the commotion in his house, when he and his son came to the house he happened to see the attack by the accused persons on Lalitha Kumari and also the attack on his wife. He then would say that the first accused fisted on his chest.
11. The evidence of P.W.3, who is the Secretary of the Sidhanar Society, would show that while he was returning from the office on the particular date, he happened to hear commotion from the courtyard of the house of P.W.1 and he went to the spot. His evidence shows that when he reached the place, some of the neighbours were already there. He would Crl.Appeal.753/2009.
15say that he saw the first accused hitting the head of Lalitha Kumari against the wall. He however, refused to depose regarding the rest of the incident and he was declared hostile as per the request of the Prosecutor. He was confronted with his statement under Section 161 Cr.P.C. in order to establish that he is not speaking the truth.
12. P.W.4 claims that while he was retuning after bath in the river, he happened to hear hue and cry from the house of P.W.1 and he went to the site. He would say that he happened to see accused Nos. 1 and 2 attacking Lalitha Kumari and P.W.1. He also says about the attack on P.W.2 and his son.
13. As far as P.W.5 is concerned, she does not claim to be an eye witness to the entire incident. According to the witness, hearing the commotion when she reached the Crl.Appeal.753/2009.
16place she saw the deceased sitting on the step of the house and she asked for water. After given the deceased water, P.W.5 claims to have taken her inside the house. After making her sit on the cot, she asked her what had transpired. Deceased Lalitha Kumari is alleged to have told her about what had happened in the house.
14. The court below has chosen to accept the evidence of P.Ws.1 to 5 regarding the incident. True, there are some inconsistencies in the evidence of P.Ws. 1 and
2. Going by the evidence of P.W.1, it looks rather difficult that P.W.2 could also have seen the attack on Lalitha Kumari. According to P.W.1, he arrives after Lalitha Kumari was thrown out of the house and after the attack on her. P.W.2 would say that it was after he had reached the site that the attack which caused Crl.Appeal.753/2009.
17the death of Lalitha Kumari had occurred. Even assuming that there are contradictions in the evidence of P.Ws.1 and 2, they are not sufficient to discard their evidence in its entirety. It needs to be noticed that P.Ws.1, 2, the deceased and Rajesh Kumar were removed to Government Hospital, Mavelikkara and were attended to by P.Ws.7 and 10, the doctors attached to the said hospital. Their respective wound certificates would show that they had gone to the hospital promptly and taken treatment which fortifies the prosecution case.
15. Even though P.W.3 was declared hostile, it is not necessary to discard his entire evidence. That portion of the evidence which favours the prosecution has to be accepted. His evidence that he had occasion to see the first accused inflicting injuries on Crl.Appeal.753/2009.
18the deceased and also the attack on P.W.2 cannot be rejected because he has chosen to deviate from his Section 161 statement to the police in certain other respects. It is settled law that even when a witness is declared hostile to the prosecution, that portion of the evidence which is in favour of the prosecution can certainly be accepted and acted upon if found to be creditworthy. It needs to be noticed that there is no suggestion to P.W.3 that he had any oblique motive or ill-will towards the accused to falsely implicate them.
16. The evidence of P.W.4 does not appear to suffer from any infirmities and he seems to be a natural witness. He had no reason to falsely implicate the accused and he had reached the place of occurrence at the relevant time hearing the hue and cry from the Crl.Appeal.753/2009.
19house of P.W.1. The court below found the evidence of P.Ws. 1 to 4 trustworthy and acceptable.
17. As far as the evidence of P.W.5 is concerned, the court below has not chosen to accept the dying declaration of the deceased for the reasons mentioned in the judgment. The evidence of P.W.5 going near the deceased and taking the deceased inside the house and making her sit on the cot are not spoken to by P.Ws.1 and 2 also. In the light of these infirmities, the court below was justified in not accepting the evidence of P.W.5 in that regard.
18. According to learned counsel for the accused, the evidence of D.W.1, the only witness from the defence side was not properly appreciated by the court below. He claims to be related to both the parties. It is pointed out Crl.Appeal.753/2009.
20that both the accused and the victim are relatives and neighbours also. D.W.1 stated that the incident occurred while accused No.2, wife of accused No.1 was on her way back from market after purchasing provisions for the house. When she reached in front of the house of P.W.1, she was attacked by the inmates of the said house and hearing her cry, accused No.1 had come to the spot. The evidence of D.W.1 cannot be accepted for more than one reason. There was absolutely no suggestion to P.Ws.1 to 4 to the effect that the incident has not occurred as alleged by the prosecution and has taken place in the road in front of their house. At least one would have expected to make an attempt to establish that the incident has not occurred as alleged by P.Ws.1 and 2. There is not even a remote suggestion to P.Ws.1 to 4 that the incident had not occurred in the Crl.Appeal.753/2009.
21courtyard of the house of P.W.1, but had taken place on the road in front of the house of P.Ws.1 and 2. It is very clear that the evidence adduced through D.W.1 is a clear afterthought and as rightly noticed by the court below does not warrant acceptance. We are in full agreement with the finding of the court below that the incident as spoken to by him is untrue.
19. Therefore there is evidence of P.Ws. 1 to 4 to show that the incident had occurred in the courtyard of the house of P.W.1 and the injuries were inflicted on the deceased and P.W.1 by accused No.1 as spoken to by P.Ws. 1 and 2.
20. It is true that there seems to be some lacuna regarding the details of the treatment given to the deceased in the Medical College Hospital, Alappuzha. The evidence of Crl.Appeal.753/2009.
22P.W.7 taken along with Ext.P4 wound certificate show that no external or internal injuries could be detected by the said doctor while examining the deceased in the Government Hospital, Mavelikkara. But there is evidence of P.W.15, who says that Lalitha Kumari was admitted in the Hospital and she was given treatment in the said Hospital. But the circumstances under which Lalitha Kumari and P.W.1 happened to be taken to Medical College Hospital is not discernible from the records. The fact remains that P.W.1 and deceased were taken to Medical College Hospital, Alappuzha.
21. There is evidence of P.W.1 to show that the deceased had developed fits in the night and that was the reason for removing her to the Medical College Hospital. The fact however remains that the deceased as well as P.W.1 were admitted in the Medical College Crl.Appeal.753/2009.
23Hospital and were undergoing treatment. There is nothing to indicate that the deceased had suffered injuries subsequent to the admission in the Government Hospital, Mavelikkara or Medical College Hospital, Alappuzha.
22. The next question that arises for consideration is what is the cause of death of Lalitha Kumari. Ext.P9 is the postmortem certificate and P.W.11 is the doctor who conducted autopsy. Ext.P9 postmortem shows the following injuries:
"Injuries(Antemortem) On dissection, there was a contusion, 5 x 3 cm on the deep layers of the scalp, just above the occiput. Skull was intact. Brain showed think subdural bleeding involving the left half, contusion of the under surface of frontal lobes and features of increased intracranial tension."
Crl.Appeal.753/2009.
24The cause of death, according to P.W.11, is due to head injury. It is true that P.W.11 in his evidence has stated that he had no occasion to see the case records relating to the deceased. But, he was definite that death was due to the injuries on the head and it could have been caused while hitting the head of the deceased against the wall. The cause of death, to be more precise, is the deceleration injuries to the brain. There is nothing to show that subsequent to the incident the deceased has fallen in the ground by which she could have sustained the injuries. The evidence of P.W.11 taken along with Ext.P9 shows that Lalitha Kumari died as a result of the injuries suffered on the head and that the death was homicidal.
23. The next question that arises for consideration is whether it was the first Crl.Appeal.753/2009.
25accused who had inflicted injuries to the deceased. The evidence of P.Ws.1, 3 and 4 leave one in no doubt that the accused had pulled her out of the house and had thrown her outside. When she tried to stand up, he hit her head against the wall. There is nothing to indicate that there was any subsequent incident in which Lalitha Kumary could have sustained injuries. It is true that the doctor who examined her in the Government Hospital, Mavelikkara did not find any internal or external injuries. But going by the medical evidence, it is not always necessary that in such acceleration or deceleration injuries external injuries must be noticed. The evidence also shows that the victim developed fits during the night which is the typical symptom of deceleration injury. It was in that context she had to be removed to the Medical Crl.Appeal.753/2009.
26College Hospital. It is also clear from the evidence that she died due to the injuries suffered by her on hitting her head against the wall. At any rate, death of Lalitha Kumari, the daughter of P.Ws.1 and 2 was caused due to the head injury inflicted by the accused.
24. What now remains to be considered is what is the offence committed by the accused. In the decision reported in Thomas's case (supra), this court considered the question whether when death is caused by fisting with hands, what is the nature of offence that could be attracted in the facts of the case. In the said case, it is seen that the accused inflicted fist injury on the eye of the deceased and later on he developed sub-dural haematoma and died due to head injury. Analysing the relevant provisions of the I.P.C., the court observed that while Crl.Appeal.753/2009.
27fisting, the accused did not have the intention to cause the death of the victim or had the intention to inflict such bodily injury, which in the ordinary course of nature, would cause death of the person concerned. The court was also of the opinion that the act of the accused could not be brought within the ambit of Section 299 of the I.P.C. also because no knowledge as such could be attributed to him.
25. It is difficult to apply the principle laid down in the decision referred to above in the facts of the present case. In the case relied on by the learned counsel death caused due to the fisting on the face of the deceased. It could be said that the act was done with the intention of causing death. The injuries could be said to be on the vital parts of the body. It was in that context that Crl.Appeal.753/2009.
28the court held that offence under Section 323 I.P.C. alone is attracted.
26. In the case on hand, it was due to hitting the head of the victim against the wall by the appellant. May be it is difficult to say that the accused had the intention to cause the death of the deceased. It is also difficult, going by the evidence on record, to come to the conclusion that he had the intention to inflict that injury which in the ordinary course of nature would cause death of the victim. The acts of accused No.1 cannot possibly be brought within the ambit of Section 300 I.P.C. But when a person hits the head of a person against the wall, he must certainly be credited with the knowledge that it is likely to cause death.
27. In view of the facts and circumstances of the case and also the act Crl.Appeal.753/2009.
29committed by the accused, we are unable to agree with the finding of the court below that offence punishable under Section 302 is attracted to the facts in the case. We feel that the offence can be brought only under Section 304 Part II I.P.C.
28. The court below had awarded imprisonment for life for the offence punishable under Section 302 I.P.C. and other terms of imprisonment for the offence punishable under Sections 451 and 323 I.P.C. It has also been found that the finding of the court below that the offence under Section 302 I.P.C. is attracted cannot be sustained and that only the offence under Section 304 Part II can be attracted to the facts of the case.
29. Considering the facts and circumstances of the case under which the incident had occurred, we feel that sentence of Crl.Appeal.753/2009.
30rigorous imprisonment for five years will be sufficient to meet the ends of justice for the offence punishable under Section 304 Part II of I.P.C.
30. However, we feel that the finding regarding the offence under Sections 451 and 323 I.P.C. and conviction and sentence for the said offences are reasonable and do not call for any interference.
In the result, this appeal is partly allowed, the conviction and sentence of the accused for the offence under Section 302 I.P.C. by the court below is set aside and he is convicted for the offence punishable under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for five years. The conviction and sentence for the offences punishable under Sections 323 and 451 are retained. Substantive sentences shall run Crl.Appeal.753/2009.
31concurrently. The accused will be entitled to set off as per law.
M. SASIDHARAN NAMBIAR, JUDGE.
P. BHAVADASAN, JUDGE.
sb.