Kerala High Court
Suresh Kumar vs State Of Kerala on 13 August, 2014
Author: P.B.Suresh Kumar
Bench: Thottathil B.Radhakrishnan, P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936
CRL.A.No. 1762 of 2010 ( )
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SC 448/2006 of ADDL. SESSIONS COURT, ,PATHANAMTHITTA
APPELLANT(S):
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SURESH KUMAR, CONVICT NO.4703,
CENTRAL PRISON, THIRUVANANTHAPURAM.
BY ADVS.SRI.RENJITH B.MARAR
SRI.C.V.MANUVILSAN
RESPONDENT(S):
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.7.2014, THE
COURT ON 13.8.2014 DELIVERED THE FOLLOWING:
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
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Crl. Appeal No.1762 of 2010
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Dated 13th August, 2014.
J U D G M E N T
P.B.Suresh Kumar, J.
The accused in S.C.No.448 of 2006 on the file of the Additional Sessions Court, Pathanamthitta, is the appellant in this appeal. He has been found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code, hereinafter, referred to as 'the IPC', for short.
2. The case of the prosecution is that on 27.1.2002, at about 7 p.m., the accused caused the death of his brother- in-law Sethu at the house of the accused by inflicting a stab injury on his stomach with a broken glass bottle. The father of the deceased informed the matter to the police and a case was registered accordingly at Adoor Police Station in connection with the said incident. Initially, the case was registered under Section 307 of the IPC and later, on the death of the victim, Crl.A.1762 of 2010 2 the Section was altered to 302 of the IPC. Pws.10 to 12 were the investigating officers of the case. Among them, PW12 laid the charge against the accused, alleging commission of offence punishable under Section 302 of the IPC.
3. On appearance, the accused pleaded not guilty. Consequently, the prosecution was called upon to adduce evidence in the matter. The prosecution, thereupon, examined 12 witnesses as PW1 to PW12 and marked 18 documents as Exts.P1 to P18. 4 material objects were also caused to be identified by the witnesses. In the course of the trial, Exts.D1, D1(a), D1(b), D1(c), D1(d) and D2 case diary statements were marked at the instance of the accused. After the evidence of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure, concerning the incriminating circumstances appearing against him. He denied those circumstances and maintained that he is innocent. Since this was not a case of no evidence for the prosecution, the accused was called upon to enter on his defence and thereupon, he examined the Medical Record Librarian of the General Hospital, Adoor on his side as DW1 and proved two documents through her, as Exts.D3 and D4.
Crl.A.1762 of 2010 3
4. The Court of Session, on a meticulous analysis of the evidence on record, found that the prosecution has established the guilt of the accused beyond reasonable doubt.
5. We have heard the learned counsel, Sri.Ranjith B.Marar, for the appellant and the learned Public Prosecutor for the State.
6. The issue to be adjudicated upon is as to whether the accused is guilty of the offence punishable under Section 302 of the IPC or not.
7. Ext.P6 is the post mortem certificate issued by PW8, the Associate Professor of Forensic Medicine and Deputy Police Surgeon, attached to the Medical College Hospital, Thiruvananthapuram. Injury Nos.1 to 8 recorded in Ext.P6 read thus:
"Injuries (Ante Mortem) (1) Scald 11 x 5 cm involving the right side of forehead and face, 5 cm to right of midline at forehead, just outer to the outer angle of right eye and 6 cm outer to the right angle of mouth. (2). Scald 20x20 cm involving the front of chest, the right shoulder and right side of neck placed 3 cm below the right ear, and 1 cm to right of midline and the left extent over the chest covering the left collarbone.
(3) Scald 25 x 10 cm involving the front and outer aspect of right arm just below the tip of shoulder.
Crl.A.1762 of 2010 4 (4) Scald 7x2 cm oblique on back of right side of chest, 3 cm behind middle of right shoulder.
(5) Scald 10x5 cm oblique on back of right side of chest, 8 cm to right of midline and 8 cm below top of shoulder. (6).Scald 3 x 1 cm, almost horizontal on the back of chest, 4 cm to left of midline and 5 cm below top of shoulder. (7) Scald 5x3.5 cm on the back and outer aspect of right elbow. (8) Surgically modified sutured laprotomy wound 21 cm long along front of abdomen, vertical, 7 cm below the stomach pit, opening into the abdominal cavity. The upper 1/3rd of the wound showed thick infiltration of blood in to its borders. On opening, the peritoneum was red, intestines showed flimsy adhesions with yellowish pus at places and over the surface of liver. The stomach was found sutured (in layers) over an area 5 cm obliquely over its front aspect just above the pylorus and another sutured area 3.5 cm involving the back wall corresponding to the former. The mesentery of small intestine behind showed two suture knots involving vessels. The transverse mesocolon was found sutured over a length of 5.5 cm with gel foam in situ over it."
A few other superficial injuries were also noted by PW8 in Ext.P6 post mortem certificate. In Ext.P6, it is certified that the cause of death was due to the penetrating injury sustained by the victim. PW8 has given evidence that injury Nos.1 to 7 are burn injuries and injury No.8 is a stab injury. PW8 has also given evidence that injury Nos.1 to 7 could be caused due to the pouring of boiled rice water and injury No.8 could be caused with a broken bottle. PW8 has stated that injury No.8 is sufficient in the ordinary course of nature to cause death. Crl.A.1762 of 2010 5 Ext.P6 certificate and the evidence tendered by PW8 would establish that the death of Sethu was a homicide.
8. PW1 was the mother of the deceased. She deposed that at the relevant time, she was residing in the shed attached to the house of her son Rajendran and the accused was residing in the adjacent house with his wife, who is her daughter. PW1 also deposed that the accused is a person who is in the habit of drinking liquor regularly after his work. According to PW1, on the relevant day, she heard the deceased uttering that he was stabbed and when she came out of the house, she saw that the deceased was falling down after suffering the injury. She stated in her evidence that the deceased also was drunk on that day and he went to the house of the accused for asking him about the reason for assaulting Thulasi, who is his sister and the wife of the accused. PW1 also stated that prior to the occurrence, there was a wordy altercation between the accused and the deceased. In cross- examination, PW1 has stated that she did not see the accused breaking the bottle for stabbing the deceased.
9. PW2 was the wife of the brother of the deceased, Rajendran. She gave evidence more or less the same version Crl.A.1762 of 2010 6 as that of PW1. PW4 was the wife of the accused and the sister of the deceased. She turned hostile to the prosecution. PW8 was the doctor who conducted the post mortem examination of the body of the deceased. PW8 has stated that injury No.8 could be caused with a broken bottle. PW10, the officer who conducted a substantial part of the investigation has given evidence that there were injuries on the body of the accused, when he was arrested, and the same were recorded in Ext.P12 Inspection Memo. Ext.P12 Inspection Memo indicates that the accused had 5 injuries on his body at the time of his arrest, of which one was a banded wound and the rest were abrasions and contusions.
10. DW1 was the Medical Record Librarian attached to the General Hospital, Adoor. She was summoned to produce the wound certificate issued to the accused on 27.1.2002 from the said hospital and the case sheet evidencing the treatment given to him for the injuries noted in the wound certificate. The said documents have been admitted in evidence as Exts.D3 and D4. Ext.D3 wound certificate and the evidence tendered by DW1 would show that the accused was admitted in the said hospital on 27.01.2002 and treated for the aforesaid Crl.A.1762 of 2010 7 injuries.
11. The prosecution relies on the oral evidence of Pws.1 and 2 and the attending circumstances to establish the guilt of the accused. Pws.1 and 2 did not see the accused stabbing the deceased with the broken bottle. The said witnesses have gone to the scene of occurrence only after hearing the cry of the deceased. Among them, the mother of the deceased has stated that she heard the accused telling her that he was stabbed. They have seen the deceased falling down, after suffering the stab injury. Both of them have said that prior to the occurrence, there was altercation between the accused and the deceased. The presence of Pws.1 and 2 at the scene immediately after the occurrence is not disputed by the accused, evidently as their presence cannot be disputed at all. The scene of occurrence is the courtyard of the residence of the accused. There was not even a suggestion in the cross- examination of the said witnesses that somebody else was the assailant. Even the case spoken to by PW4 that the deceased sustained injury by falling on a liquor bottle was negatived by PW6, clarifying that the injury sustained by the deceased would not be caused by a fall on a bottle. The accused is the Crl.A.1762 of 2010 8 son-in-law of PW1 and brother-in-law of PW2. There is no reason for them to give evidence against the accused, if he is not the real assailant. The evidence tendered by Pws.1 and 2 is well supported by the evidence of PW6, the doctor that the injuries suffered by the deceased could be possible with a broken bottle. In view of the facts and circumstances stated above, we agree with the finding of the Court of Session that the prosecution has succeeded in establishing the complicity of the accused in the crime.
12. The learned counsel for the appellant argued that the proved facts in this case do not make out a case of murder punishable under section 302 of the IPC. According to him, at any rate, the accused can be convicted only under Part II of Section 304 of the IPC. We have examined this contention elaborately. The place of occurrence is the courtyard of the residence of the accused. It has come out in evidence that the occurrence would not have happened had the deceased not gone to the house of the accused. The prosecution version of the occurrence is only that the deceased went to the house of the accused to ask him about his conduct in assaulting his sister, the wife of the accused. The prosecution is not Crl.A.1762 of 2010 9 attributing any previous animosity for the accused to cause the death of the deceased. As such, it cannot be said that the accused intended to cause the death of the deceased. It has come out in evidence that the accused is a person who is in the habit of picking up quarrel with others, after consuming liquor. The evidence tendered by PW1 would indicate that even the deceased was drunk when he went to the house of the accused. There is no evidence on record to indicate that the accused broke the bottle for stabbing the deceased. It is seen that the injuries have been inflicted by the accused immediately after the quarrel, and the fight which followed the quarrel. In these circumstances, it is evident that the injury has been inflicted by the accused on the deceased due to heat of passion in a sudden fight upon a sudden quarrel. We are, therefore, of the view that the prosecution has not made out a case under Section 302 of the IPC. In view of the evidence tendered by PW6, the doctor that the injury on the abdomen of the deceased is sufficient in the ordinary course of nature to cause death, we find that the accused is liable to be convicted only under Part I of Section 304 of the IPC. Coming to the question of sentence, in view of the nature of the injury caused Crl.A.1762 of 2010 10 by the accused, we find that rigorous imprisonment for a period of eight years would be the appropriate sentence to be imposed on the accused in the interests of justice.
13. In the result, the conviction of the appellant is altered to Part I of Section 304 of the IPC and the sentence imposed on him is modified to rigorous imprisonment for a period of eight years. The appellant would be entitled to set off under Section 428 of the Code of Criminal Procedure. The appeal is allowed to the extent indicated above.
Sd/-
THOTTATHIL B. RADHAKRISHNAN, JUDGE.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs/smv (true copy)