Kerala High Court
Anilkumar @ Kochumon vs State Of Kerala-Represented By The on 16 January, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933
CRL.A.No. 1245 of 2002 (D)
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SC.25/1999 of ADDL.DISTRICT COURT (ADHOC), ALAPPUZHA
APPELLANT/ACCUSED:
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ANILKUMAR @ KOCHUMON, S/O. SREEDHARAN,
PUTHENVEEDU, PUTHUKKUNDAM MURI,
KARTHIKAPPALLY VILLAGE.
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.SOJAN MICHEAL
RESPONDENT/COMPLAINANT:
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1 STATE OF KERALA-REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR, SRI. SREEJITH V.S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
N.K.BALAKRISHNAN, J.
---------------------------------------------------- Crl.A.No.1245 of 2002
---------------------------------------------------- Dated this the 16th day of January, 2012 Judgment The second accused in S.C.No.25 of 1999 was convicted by the Additional Sessions Judge (Adhoc-I), Fast Track, Alappuzha for offence punishable under Section 308 IPC and he was sentenced to undergo R.I. for two years and to pay Rs.3000/- as fine and in default to undergo R.I. for three months. The first accused who is the father of the appellant was acquitted by that court. The incident took place at about 8.30 PM on 31.7.1998. There is a road on the eastern side of the house of P.W.1 and the accused. The house compound of P.W.1 and A1 are abutting each other. Some plants were in the house compound of A1. There were overhanging branches of plants standing in the property of A1 which P.W.1 wanted to be cut and removed by A1. A1 did not accede to that request. On the date of incident when A1 was on the road in front of his house P.W.1 went to the road in a haughty and agitated mood since A1 did not yield to the demand made by P.W.1 to cut and remove the overhanging branches. When P.W.1 again made demand, A1 refused to budge. According Crl.A.1245/02 2 to the prosecution, A1 then pulled down P.W.1. Then A2, the son of A1 came with M.O.1 chopper and inflicted cut injuries on the front of neck, on the back of chest and also on the outer aspect of the left upper arm of P.W.1. P.W.1 was thereafter taken to the hospital. Police went to the hospital on the next day and recorded his statement based on which the FIR was registered. After completing investigation, charge sheet was laid against the appellant and his father who was the first respondent.
2. P.Ws.1 to 13 were examined and Exts.P1 to P14 were marked. D.Ws.1 to 3 were examined and Exts.D1 to D5 were marked on the side of the defence. M.O.1 chopper and M.O.2 blood stained cloths and M.O.3 sheet were also identified and marked.
3. The learned Additional Sessions Judge found that the prosecution could not prove that A1 was the aggressor or that he had pulled down P.W.1. The evidence to that effect given by P.W.1 and his wife (P.W.5) and the two eye witnesses (P.Ws.6 and 7) was not accepted by the trial court. The learned Additional Sessions Judge accepted the evidence given by P.Ws.1, 5, 6 and 7 to hold that A2 had inflicted the injuries to P.W.1 with M.O.1 chopper. It was further found that as one of the injuries was Crl.A.1245/02 3 inflicted on the neck, the appellant should be presumed to have had the knowledge that death was likely to be caused to the victim and thus the appellant was held guilty, convicted for the offence under Section 308 IPC and sentenced as mentioned above.
4. The learned counsel for the appellant would submit that since the prosecution has failed to prove the genesis of the incident and since the learned trial judge also found that the version of the prosecution with regard to the first part of the incident, implicating A1 is not acceptable, the court below should have disbelieved the second part of the incident also. According to the defence, the court should have found that the foundation of the prosecution itself was shattered and as such nothing could be built by the prosecution on such a shaken edifice. It is also submitted by the learned counsel that the evidence given by P.W.1 would show that only on hearing the cry of P.W.1, his wife (P.W.5) reached the road and it was after hearing the cry of his wife, P.Ws.6 and 7 reached there and as such there was no possibility for P.Ws.6 and 7 to see the incident at all. Even P.W.5 could not have seen the appellant inflicting injury on P.W.1, since going by the evidence given by P.W.1, P.W.5 reached there only Crl.A.1245/02 4 on hearing the cry, the learned counsel submits. This submission is resisted by the learned Public Prosecutor stating that though in evidence P.W.1 has stated in that line, it cannot be assumed that it was not possible for P.W.5 to reach the road when there was some sort of tumult or chaos on the road. The evidence would show that before the appellant inflicted the injury there was some wordy altercation. It could have drawn the attention of P.W.5 to the spot. Though that possibility also will be there, the learned counsel for the appellant would submit that, a person could see the incident only after reaching the road and not before that since admittedly there was no electric light. The introduction of moon light at a belated stage did not inspire the mind of the trial judge. According to P.W.5, she went to the road with a kerosene lamp with which it is not possible for a person to see the incident from a distance. If P.Ws.6 and 7 had reached there, it could be only after hearing the cry of P.Ws.1 and 5, the defence contends. Then those persons also could not have witnessed the actual incident. They could have only seen the appellant leaving the place with M.O.1.
5. In this connection, the learned counsel for the appellant would also submit that the evidence of P.W.4 would show that Crl.A.1245/02 5 P.W.1 was hot drunk even at the time when he was examined by the doctor, i.e. at 10.45 PM as can be seen from Ext.P4. If P.W.1 was seen inebriate at 10.45 PM, what might have been his state of mind and body because of intoxication at 8.30 PM is the question, the learned counsel for the appellant poses. During cross-examination P.W.4 has stated that P.W.5 was in a state of inco-ordination or unsteadiness besides his speech being incoherent. The evidence given by P.W.4 would leave no doubt that P.W.1 was totally intoxicated at the time of incident. Relying on the evidence given by P.W.4, the learned counsel for the appellant has also invited the attention of the court that even the admission made by P.W.4 is that since A1 did not heed to his request to cut and remove the overhanging branches of the plant, he (P.W.1) was totally agitated and perturbed that he could not even control himself. The learned counsel submits that if P.W.1 was in such an intoxicated and uncontrollable state, the possibility of P.W.1 himself attempting to cut and remove the overhanging branches of the plants could not be ruled out. If P.W.1 himself had attempted to cut and remove such overhanging branches of the plants, A1 must have objected to the same, in which case there was every possibility of a tussle Crl.A.1245/02 6 between P.W.1 and A1. There is evidence to show that A1 was aged about 77 years and was a heart patient. The evidence to that effect was given by the doctor. P.W.1 has admitted that he was a healthy man. His wife P.W.5 has also admitted that her husband (P.W.1) was a healthy man whereas A1 was aged and was a man of feeble health. Therefore, it will prove beyond doubt that it was not possible for A1 to push or pull P.W.1 down as alleged by the prosecution; that too, when P.W.1 was hot drunk and was in an agitated mood.
6. Bearing in mind this factual background, it has to be seen whether the case of the prosecution that A2 came to the scene with M.O.1 and inflicted the cut injuries as shown in Ext.P4 is acceptable in toto. In this connection, it is pointed out that P.W.4, the doctor has stated that M.O.1 has an irregular edge and that by cutting with such a weapon having irregular edge, it cannot cause a clean cut incised wound. The possibility of causing clean cut injury could be only by using a sharp edged weapon. The injuries noted by P.W.1 were clean cut injuries which might be caused only by using a clean sharp edged weapon. Therefore, according to the petitioners, the case of the prosecution that A2 inflicted the injuries on P.W.1 with M.O.1 becomes highly Crl.A.1245/02 7 improbable.
7. There is another way of visualising the incident, the learned counsel submits. Suppose it is a case where P.W.1, a very strong and healthy man, drunk and agitated as he was, when rushed towards A1 with M.O.1 in his hand, taken by him for cutting and removing the overhanging branches, A2 the son of A1 might have had a reasonable apprehension that his father was going to be attacked by P.W.1 with the weapon mentioned above. If that be so, it was probable that A2 in his attempt to save his father from being attacked tried to get grasp of the weapon from P.W.1 and so it was possible to have a push and pull between A2 and P.W.1 and while so, injuries might have been caused to P.W.1. In this connection, the learned counsel for the appellant would submit that as opined by P.W.4 the injuries were only muscle deep injuries; the injury was not deep or penetrating which according to the defence improbablises the story of prosecution that cut injuries were caused by the appellant with M.O.1. If viewed in that angle, P.Ws.6 and 7 could not have seen the actual infliction of injury on the body of P.W.1., the learned counsel submits. Only because A2 was holding the weapon, probably after it was got grasp of it from P.W.1. they (P.Ws.6 and Crl.A.1245/02 8
7) deposed before the court that A2 inflicted the injury with M.O.1. It is submitted by the learned counsel for the appellant that though no specific defence was put forward by the appellant, the accused can rely upon the points and the factors brought out in the evidence of prosecution to support the plea of self defence and at any rate, it can be found that A2 might have caused the injury only due to a sudden provocation.
8. The court below has found that the appellant exceeded the right of private defence. Even if it is accepted that the appellant had exceeded his right of private defence, it cannot be said that the accused had voluntarily caused hurt with such knowledge that death was likely to be caused to P.W.1. The learned counsel submits that there is every reason to hold that P.W.1, a very strong and healthy man, in an agitated and drunken state of mind rushed towards A1 with M.O.1 in his hand and as A1 was weak and sick, A2, his son was suddenly provoked and inflicted the injury on P.W.1. If that be so, the offence would fall only under Section 334 IPC. The learned counsel for the appellant would submit that the finding entered by the court below that the injury was caused on the neck of P.W.1 is not correct. The injury was found on the front of the neck. That was Crl.A.1245/02 9 muscle deep only. That would suggest that injury was not on the neck. In such circumstances, the plea that offence would fall under Section 308 IPC cannot be sustained. It would fall under Section 334 IPC only. The circumstances would only show that the appellant inflicted the injury in a grave and sudden provocation. As such the conviction of the appellant for the offence under Section 308 IPC is set aside. He is convicted for the offence punishable under Section 334 IPC. The incident took place about 13 years back. The evidence would show that after the incident the appellant and his father left the place and have been residing elsewhere. Hence, all those aspects can be taken into consideration while awarding sentence.
9. In the result, this Criminal Appeal is allowed in part. The conviction and sentence passed against the appellant for the offence under Section 308 IPC are set aside; instead, the appellant is convicted for the offence punishable under Section 334 IPC and is sentenced to undergo imprisonment till the rising of the court and to pay Rs.5000/- as compensation to P.W.1.
N.K.BALAKRISHNAN, JUDGE.
srd Crl.A.1245/02 10 Crl.A.1245/02 11