Kerala High Court
Haridas vs State Of Kerala on 10 November, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936
CRL.A.No. 1892 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 30/1999 OF THE ADDL. SESSIONS COURT-Ii,
MAVELIKKARA DATED 10-11-2003
APPELLANT(S)/ACCUSED:
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HARIDAS, S/O. CHELLAPPAN,
THAIVILAYIL VEEDU,
ARUNUTTIMANGALAM MURI,
VETTIYAR VILLAGE, MAVELIKKARA TALUK
BY ADV. SRI.N.ASHOK KUMAR
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSCUTOR,
HIGH COURT OF KERALA
R1 BY PUBLIC PROSECUTOR SMT.V.S.JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 24-10-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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C.T.RAVIKUMAR, J
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Crl.A No. 1892 of 2003
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Dated this the 24th day of October, 2014
ORDER
The appellant was the sole accused in S.C.No.30/1999 on the files of the court of the Additional Sessions Judge-II, Mavelikkara. The appellant was tried for offences punishable under sections 447, 324 and 307 of the Indian Penal Code. As per the impugned judgment he was found guilty for the offences punishable under sections 307 and 447, IPC. Consequently, he was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/- under section 307, IPC. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a further period of six months. Under section 447, IPC the petitioner was sentenced to undergo rigorous imprisonment for one month and substantive sentences of imprisonment were ordered to run concurrently. This appeal is directed against the said judgment of conviction.
Crl.A No.1892 of 2003 2
2. The case of prosecution is as follows:-
The appellant and the injured Sivadasan (PW3) are brothers. Owing to enmity entertained by the appellant against PW3, based on some property dispute, with the intention to cause his death the appellant criminally trespassed into the courtyard of PW3 on 20.5.1998 at about 11 a.m. and stabbed him with a knife on the left abdomen below the 6th chest bone causing protrusion of intestine and again stabbed twice on the right scapular region and the left lower chest and thereby attempted to commit murder of Sivadasan and committed the other offences. Immediately, after the incident, PW3 was taken to Government Hospital Mavelikkara by PW1, their cousin brother and from there he was taken to Medical College Hospital, Alappuzha. He underwent a surgery and remained there as an inpatient for 10 days. Based on Ext.P1 FIS, Ext.P9 FIR was registered. PW13 conducted the investigation and laid the final report. On 21.5.1998 he visited the scene of occurrence and prepared Ext.P6 scene mahazar. Blood stained soil was taken from the scene of occurrence. The learned Crl.A No.1892 of 2003 3 Judicial Magistrate of First Class, Mavelikkara committed the case to Sessions Court , Alappuzha as per order in C.P.No.50/98 and then it was made over to the court of the Additional Sessions Judge-II, Mavelikkara and the impugned judgment was passed after the trial. On the side of the prosecution PWs 1 to 13 were examined, Exts.P1 to P15 were marked and MO1 was identified, to prove the charge against the appellant. After the closure of prosecution evidence, the appellant was examined under section 313, Cr.PC. and he denied all the incriminating circumstances put to him. No evidence, either oral or documentary, were produced on the side of the accused in defence. PW3 is the injured. Evidently, PWs 2, and 6 are the occurrence witnesses. PW2 is the wife of PW3, the injured and PW6 is their son. PW1 is the cousin brother of the injured as also the accused (appellant). PWs 4 and 5 are respectively the Doctors, who issued Ext.Ext.P3 Wound Certificate and P2 Discharge Certificate. PW7 turned hostile to the prosecution. On scanning of the oral and documentary evidence the trial court arrived at the conclusion Crl.A No.1892 of 2003 4 that the appellant herein criminally trespassed into the courtyard of PW3 and inflicted the aforementioned stab injuries on the vital parts of PW3 with an intention to cause his death and with the knowledge that stabbing PW3 on such vital parts in the ordinary course would result in his death. It is consequent to such findings that the learned Sessions Judge found the appellant guilty under sections 307 and 447 IPC.
3. The case of the appellant is that in view of the evidence of PW7 who turned hostile to the prosecution the very genesis of the case got shrouded with suspicion and therefore the evidence of PW1 as also PWs 2, 3 and 6 ought not to have been believed by the trial court to enter into the culpability of the appellant. Per contra, the learned Public Prosecutor contended that no illegality or infirmity could be attributed to the manner in which the entire evidence were appreciated by the trial court and, in fact, the evidence of PWs 2, 3 and 6 irresistibly would lead to the conclusion that the appellant had criminally trespassed into courtyard of PW3 and stabbed him thrice on the vital part; as aforementioned, Crl.A No.1892 of 2003 5 with a view to murder him. I will examine the evidence of PWs 1 to 3 and 6 to ascertain whether the trial court has properly appreciated the evidence in coming to the aforesaid conclusion.
4. PW1 is the cousin of the injured and also the accused/appellant. He would depose that though they were set out for work as on 20.5.1998 they were to return home without going for work as the tyre of the bicycle got punctured and there occurred delay in getting it repaired. According to him, he went to the scene of occurrence on hearing hue and cry from the house of PW3 and then, he saw the appellant/accused rushing to his house with a blood stained knife and PW3 with stab injuries and intestine protruding out. Thereupon, he took PW3 to Government Hospital, Mavelikkara and thereafter to Medical College Hospital, Alappuzaha. He would depose that he gave Ext.P1 FIS. PW2 is the wife of PW3. She would depose that the incident occurred on the eastern courtyard of their house and the accused /appellant came there with MO1 knife and inflicted injuries on PW3. She Crl.A No.1892 of 2003 6 would also depose that it was upon her hue and cry that PW1 came to the scene of occurrence. She would depose that she came there on hearing the cry of the PW3 and upon reaching there she found the accused/appellant inflicting two more injuries on PW3. She would also depose that PW1 took PW3 to hospital in an autorickshaw. PW3 is the injured. He deposed that in the early morning on 20.5.1998 he along with PW1 set out for work to Cherukol on a bicycle as the tyre of bicycle got punctured and there occurred delay in getting the bicycle repaired they had to return home without going to the work place. When he reached home he found PW7 engaged in tilling the property of CW6, Raghavan, who is the father of PW1. The accused/appellant obstructed Suresh and thereupon PW3 made a comment from his house to the effect that let the accused be allowed to keep the entire property. Getting enraged by the words within minutes the accused came out to his courtyard shouting "H_HAa Dx^HaU UXqaU_W H_fK 5a]_:naNb?afN?^"
(you will be buried in the property to be given to you) and inflicted one stab injury with a knife below the 6th chest bone Crl.A No.1892 of 2003 7 on the left abdomen. He cried aloud and his intestine protruded out. He identified MO1 knife. Thereafter, the accused/appellant caused two more stab injuries on his body. PW6 is the son of PWs 2 and 3 and he also deposed on the same lines. He would depose that the accused had inflicted three stab injuries on PW3. Though, there is some minor discrepancy in the evidence of PWs 1 to 3 and 6, a scanning of the evidence would reveal that there is no material discrepancy for discarding the case of the prosecution. The oral testimonies of PWs 2, 3 and 6 would undoubtedly go to show that the accused/appellant had entered into the courtyard of PW3 and the incident occurred there at about 11 a.m. on 20.05.1998. PW3, the injured himself vividly described the incident. Despite the thorough cross examination nothing to make the version of PW3 untrustworthy could be brought out. In such circumstances, when his version is corroborated by the evidence of PW2 and PW6 and supported by the evidence of PW1 there is no reason to cast any suspicion on the version of PW3 as relates the Crl.A No.1892 of 2003 8 culpability of the appellant. The evidence of PWs 2, 3 and 6 would establish that the appellant had criminally trespassed into their property and stabbed PW3 with MO1 knife. Add to it, there is the version of PW1 who is the cousin brother of both PW3 and the appellant. According to him he went there, on hearing a hue and cry from the property of PW3 and when he went there he saw the appellant rushing to his house with a blood stained knife and saw PW3 there in the property, after sustaining the injuries and with the intestine protruded out. The evidence of PW4, who treated PW3 when he was taken to Mavelikkra Taluk Hospital and issued Ext.P3 wound certificate is to the effect that when PW3 was brought to hospital he was conscious and on his body three injuries were found. These facts are evident from Ext.P3. It is also evident from the oral testimony of PW4 that on 20.5.1998, PW3 was brought to the hospital by one Rajendran. He would also depose that the injuries noted above are fatal and they were inflicted on the vital parts of the body of PW3 and that all the grave injuries could be caused by a weapon like, MO1 knife. PW4 would also Crl.A No.1892 of 2003 9 depose that seeing the state of PW3, he was referred to Medical College Hospital, Alappuzha after giving first aid. PW5 is the Doctor who treated PW3 from Medical College Hospital, Alappuzha. He issued Ext.P4 discharge certificate. Ext.P4 discharge certificate would reveal that PW3 was made to undergo a surgery and he had been there as an inpatient for 10 days. Ext.P4 Discharge Certificate would reveal that PW3 had stab injuries on abdomen with a large bowel herniation and that PW3 had undergone emergency laparotomy on 20.5.1998 for the purpose of reposition of bowel and closure of protrusion of intestine. The evidence of PW4 along with PW3 would undoubtedly go to show that PW3 had sustained three stab injuries. It is also evident that the injuries sustained by PW3 are on the vital part of his body. The evidence of PW3, PW2 and PW6 would undoubtedly reveal the circumstances and manner in which the appellant behaved at the time of the occurrence. Though, PWs 1 to 3 and 6 were cross examined at length nothing could be revealed from them to discredit their oral testimonies. As noticed Crl.A No.1892 of 2003 10 hereinbefore, their evidence would undoubtedly reveal that on the material aspects there is corroboration and the minor discrepancies in their evidence are not sufficient to discredit their version. In fact, after closure of the prosecution case the appellant was examined under section 313 of the Code of Criminal Procedure. All the incriminating circumstances were put to him and his answers to question No.4 and 37 would reveal that PW3 was taken to hospital by PW1 in an autorickshaw, on 20.5.1998 after 11 am. Though no specific defence was taken by the appellant at the time of his examination under section 313 Cr.P.C. it is evident from the judgment that at the time of argument a defence was attempted to be set out. True that, certain suggestions were made to the witnesses to make out a case that PW3 sustained such injuries on account of a fall into a canal. At the same time, apart from such suggestions no evidence whatsoever was adduced to create at least a suspicion regarding the occurrence. The learned counsel for the appellant submitted that the evidence of the hostile witness viz., PW7 would reveal Crl.A No.1892 of 2003 11 that the prosecution has failed to establish the genesis of the case. Though, the case of the prosecution is that when PW3 came to his house PW7, Suresh was engaged in tilling work in the property belonging one Raghavan, who is the father of PW1. It is the further contention that PW7 categorically denied the case of the prosecution in that regard. The evidence of PW7 is to the effect that he had not seen the actual occurrence and he only heard about such an incident after PW3 was taken to hospital. He is the first cousin of the injured and the appellant. PW7 did not see the incident and also about the period of treatment undergone by PW3 at Medical College, Alappuzha. True that, the evidence of PW7 in the said circumstances, did not lend corroboration to the prosecution case. At the same time, it is not sufficient to discredit the evidence of PWs 1 to 3 and 6. The defence case attempted to set up would not suggest that the incident occurred on account of a sudden altercation. In the said circumstances, even if the prosecution could not obtain support from the evidence of PW7 regarding the genesis of the incident it is Crl.A No.1892 of 2003 12 inconsequential and it is not sufficient to cut the root of the prosecution case, especially in the light of the evidence of PWs 1 to 3 and 6. As noticed hereinbefore, even the appellant during his 313 examination would admit the fact that it was Rajendran, who took PW3 to hospital in an autorickshaw on 20.5.1998 at about 11 am. When the defence failed to elicit anything to discredit the oral testimony of the injured regarding the occurrence, the version of the injured has to be believed. The injured and the appellant are brothers. The evidence would reveal that they were not in good terms for the past several years owing to a dispute regarding their ancestral property. The evidence of PW3, the injured gained support from the oral testimonies of PW2 and PW6. The mere fact that PW2 and PW6 are respectively the wife and son of PW3 is no reason to discredit their evidence. When an incident took place in their own courtyard they are the natural witnesses. When the defence could bring out nothing to discredit their version which support the oral testimony of PW3 and when their evidence gained further support from Crl.A No.1892 of 2003 13 PW4 and PW5, the doctors it can only be held that the prosecution has succeeded in establishing that the incident occurred in the courtyard of PW3 and that PW3 had sustained three stab injuries with MO1, which is a dangerous weapon and the injuries were sustained by PW3 on vital parts.
4. The learned Sessions Judge found that the injuries inflicted with MO1 are on the vital parts and the circumstances would reveal that such injuries were inflicted by the appellant with an intention to cause death of PW3. It is also found from the attending circumstances that the appellant was having a knowledge that inflicting such injuries on those vital parts with MO1 would be sufficient in the ordinary course of nature to cause death and that such bodily injuries were inflicted intentionally. The learned counsel for the appellant strongly challenged such findings and contended that since there was no injuries on the intestine which was protruded out the appellant ought not to have been charged under section 307, IPC instead he could have been charged under section 320 IPC. To bring home the point the learned Crl.A No.1892 of 2003 14 counsel relied on decisions of the Hon'ble Apex Court in Sarju Prasad v. State of Bihar (1965 SC 843) and Jai Narain Mishra and Others v. The State of Bihar (AIR 1972 SC 1764).
5. For appreciating the contentions raised by the learned counsel for the appellant relying in the aforesaid decisions it is only apposite to look into the ingredients to attract the offences under section 307 and 447 IPC. To attract an offence under sections 307, IPC undoubtedly all the ingredients of murder, short of death must exist. (a) There must be an attempt to cause death of a human being (b) The accused must have made the said attempt. (c) The alleged act must have been done with the intention to cause death or with the intention of causing such bodily injuries as (i) the accused himself knew to be likely to cause death and (ii) that it was sufficient in the ordinary course of nature to cause death, (d) The accused must have attempted to cause death by doing an act known to him so imminently dangerous that it must in all probability cause death or such bodily injury as is Crl.A No.1892 of 2003 15 likely to cause death. The evidence of PWs 2, 3 and 6 is to the effect that the appellant had attempted to cause death of PW3 and he stabbed PW3 with an intention to cause such bodily injuries which the appellant knew to be likely to cause death or and it was sufficient in the ordinary course of nature of death of PW3. It is evident that one of the stab injuries inflicted by the appellant caused protrusion of the large intestine of PW3 and the appellant had inflicted two more stab injuries on the vital parts which are of size 4cmX2cm and 5cmx2cm, on vital parts. Though, the large intestine protruded out, it is true that no injury was noted on the intestine. It is in the said circumstance that the learned counsel, relying on the decision in Sarju Prasad's case (supra), contended that the appellant ought not to have been charged under section 307, IPC and he could have been charge sheeted only under section 320, IPC. I am afraid the said contention cannot be accepted going by the very decision relied on by the appellant himself. In the decision in Sarju Prasad's case (supra), it was held by the Apex Court that the Crl.A No.1892 of 2003 16 fact that no vital organ of the injured had been cut would not be sufficient to take the act of accused out of the purview of section 307, IPC. In the said circumstances, when it is evident that owing to the injuries inflicted by PW1 the large intestine of the PW3 protruded out, the reason that no injury had actually been caused to the intestine by itself cannot be a reason to take the act of the appellant out of the purview of section 307, IPC. PW3, the injured who is none other than the brother of the appellant deposed to the effect that the appellant attacked him by saying:-" you will be buried in the property to be given to you (H_HAa Dx^HaU UXqaU_W H_fK 5a]_:naNb?afN?^) and inflicted the injury on his abdomen causing protrusion of the large intestine. The evidence of PW3 regarding the infliction of two more stab injuries by the appellant gets corroborated by the version of PWs 2 and 6.
The evidence of PW2 and 6 that PW3 had sustained three stab injuries is corroborated by the version of PW4 with Ext.P3 and PW5 with Ext.P4. The state of mind of the accused is a decisive factor and that should be deduced from the Crl.A No.1892 of 2003 17 surrounding circumstances. Certainly, there can be doubt that there is little chance for getting direct evidence in that regard. The evidence of PWs 2, 3 and 6 would reveal the state of mind of the accused and the same along with the other circumstances viz., the nature of the injuries and the parts on which such injuries were inflicted by him would go to show that the appellant inflicted such injuries on PW3 with an intention to cause his death or knowing fully that inflicting such injuries on such vital parts is likely to cause death and it is sufficient in the ordinary course of nature to cause death of PW3. In the said circumstances, I do not find any illegality in the findings of the trial court that the accused is guilty under section 307, IPC. Merely because no injury was caused to the large intestine which was protruded out, cannot, in the circumstances be treated as a reason for accepting the contention that the appellant ought not to have been charged under section 307, IPC whereas he could have been charge sheeted only under section 320, IPC or under Section 324, IPC. Upon scanning the evidence, oral and documentary, in Crl.A No.1892 of 2003 18 this case I do not find any reason to interfere with the finding of the learned Sessions Judge that the appellant had inflicted such injuries explained in Ext.P3 wound certificate on vital parts of PW3 and such injuries were inflicted on PW3 with an intention to cause death and knowing fully that causing such injuries on the body of PW3 is likely to cause his death and it was sufficient in the ordinary course to cause his death. The prosecution has also succeeded in proving that the incident occurred in the courtyard of PW3. It is evident from the evidence of PWs 1 to 3 and 6. Evidence in this case would undoubtedly go to show that appellant entered into property, which is in the possession of PW3, whereon he resides along with his family, with the intention to commit an offence. In such circumstances, the appellant cannot be heard to contend that his entry to the courtyard of PW3 was lawful and it would not attract the offence under section 441, IPC punishable under section 447, IPC. When the evidence would go to show that the appellant entered into the courtyard of the property which is in the possession whereon he along with his family Crl.A No.1892 of 2003 19 lives, it can only be said that the appellant had criminally trespassed into the property. The fact that he inflicted such injuries from there on the body of PW3 would again go to show that his entry into the property was intention to commit such an offence. In the circumstances I do not find any reason to disagree with the findings of the trial court that the appellant had committed the offence under section 441, IPC punishable under section 447 IPC. In short, I am of the view that the prosecution had succeeded in establishing the fact that appellant had committed offences under section 307 and 447 IPC and consequently the judgment of conviction passed by the learned Sessions Judge holding the appellant guilty under section 307 and 447 IPC and convicting him as aforesaid, call for no appellate interference.
6. The learned counsel for the appellant submitted that the appellant is presently aged only 48 years and his wife is an insane and that he is having two daughters. Taking into account the verity of the said submission is not seriously disputed and circumstances I am Crl.A No.1892 of 2003 20 inclined to modify the sentence while affirming the conviction. Accordingly, while confirming the conviction of the appellant under section 307, IPC the substantive sentence under the aforesaid sections stands modified as hereunder:-
Under section 307 IPC for a period of 3 years and all the other sentences imposed on the petitioner are not interfered with. Needless to say that the sentences of imprisonment shall run concurrently, as ordered by the Trial Court. The appeal is allowed in part to the aforesaid extent. Transmit the records to the trial court so as to execute the sentences on the appellant, in accordance with law.
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C.T.RAVIKUMAR,JUDGE.
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