Kerala High Court
Ayyappan Alias Appu vs State Of Kerala on 31 October, 2005
Equivalent citations: 2006CRILJ661
Author: J.B. Koshy
Bench: J.B. Koshy, M. Sasidharan Nambiar
JUDGMENT J.B. Koshy, J.
1. A husband and wife were charge sheeted for the murder of Kunjan the brother of first accused under Sections 302 and 323 read with Section 34, IPC. First accused husband was found guilty for the offence under Section 302, IPC. Second accused, his wife was acquitted of all charges. First accused filed this appeal. Prosecution case was that accused 1 and 2 along with children and father of first accused were residing in the 'tharawad house at Aayappara, Kottappady Panchayat. Father of A1 was bed ridden on account of paralysis.
The first accused along with his wife and two children was residing in a building about 20 feet away from the 'tharawad house' in the same compound. Al and A2 left the tharawad and shifted their residence to a nearby rented house. Therefore, father was taken to the residence of the deceased son which was nearby. Since the father was taken to his house, 'tharawad' was locked. On 27-1-1997 the deceased came to his house in the evening after work as usual by 7 o'clock. He saw a kerosene lamp lighted in the tharawad house. He wanted to ascertain what it was. He saw Al and A2 there. The deceased was followed by his wife P.W. 1 also. The deceased asked the first accused whether he had returned after wandering around and there was a tussle between the two. In the course of tussle, the first accused took out a knife and stabbed the deceased on his chest. The deceased sustained severe injuries and there was profuse bleeding. The wife of the deceased rushed in and requested first accused not to stab him. First accused pushed her down. The deceased also pleaded with first accused not to stab him. But first accused stabbed him again and again on his chest and stomach. P.W. 1 attempted to shield her husband. A2 caught hold of her by the tuft of her hair and pushed her down to the Court yard. In the meanwhile, two children of Kunjan also had reached there and they cried aloud. Kunjan was lying down oh the verandah of tharawad house. The people in the neighbourhood bandaged the injuries of Kunjan and he was taken to the hospital. He succumbed to the stab injuries which he sustained at the hands of the first accused.
2. P.W. 11 gave evidence that while he was the Sub Inspector of Police, Kottappady first accused came to the police station with a blood stained knife (MO. 1) and stated that he had stabbed his elder brother and the knife seen in his possession was seized as per Ext. PS mahazar. Immediately P.W. 11 proceeded to the scene of occurrence and recorded Ext. P1 statement given by the wife of the deceased and Crime No. 3/97 was registered. However, F.I. Statement reached the Magistrate at 5.30 p.m. Ext. P5 is the scene mahazar prepared by C.I. of police and material objects such as chappal, sheath of knife, wrist watch and burned out candle, a kerosene lamp and blood stained soil were recovered from the scene of occurrence. P.W. 2 doctor who conducted postmortem has stated as follows :
1. Incised penetrating wound 3x1 cm oblique on left side of chest. Its upper outer sharp end was 10 cms. away from left nipple in 8 o'clock position and the lower inner broad end was 1 cm outer to midline.
2. Incised wound 2 x 0.7 cm horizontal on right side of abdomen. Its inner end was 7 cm outer to midline and 12 cms away from right nipple in a 5 o'clock position. The other end showed a tailing of 1 cm outwards.
3. Incised penetrating wound 4.3 x 1.3 cms horizontal on right side of abdomen. Its inner broad end was in the midline and 8.5 cm above umbilicus. The other end was sharply cut.
4. Incised penetrating wound 3 x 1.2 cm oblique on left side of abdomen. Its upper outer sharp end was 11.5 cm away from umbilicus in 2 o'clock position, the other end was broad.
5. Abrasion 1 x 0.8 cms on the dorsurn of right hand.
6. Incised wound 1.5 x 0.5 cm skin deep in the inter digital cleft of index and thumb of left hand.
7. Incised wound 1 x 0.3 cms skin deep on inner side of left thumb 1 cm below injury No. 6.
8. The wound No. 1 in its course cut a costal cartilage, the pericardium, right ventricular cavity of heart, lower lobe of left lung, left side of diaphragm, left lobe of liver and terminated in the abdominal cavity. The wound was directed downwards, backwards and to the left for a total minimum depth of 7 cm. The left chest cavity contained 500 ml. of blood and abdominal cavity contained 600 ml.
9. The wound No. 2 cut through the subcutaneous tissues and muscles and terminated on the cartrilage underneath the producing a nick on it without entering any body cavity.
10. The wound No. 3 entered the abdominal cavity and was directed backwards. It did not cut any internal organs.
10. The wound No. 4 entered the abdominal cavity and was directed backwards and to the right. It did not cut any internal organs.
It can be seen that injuries 1 to 4 are serious injuries and first injury was fatal. The doctor who conducted autopsy deposed that the deceased died due to stab injury inflicted on chest involving heart, lungs and liver.
3. There is no serious contradiction between Ext. P1 and deposition of P.W. 3 before the Court. P.W. 3 is the daughter of Kunjan. She deposed that while she was studying her lesson she heard the cry of P.W. 1 from the tharawad house. She rushed therein. Version of P.W. 1 also corroborated with the story of P.W. 3. P.W. 4 is the neighbour who came from the neighbourhood hearing the cry. He bandaged the injuries of the deceased and had taken the deceased to Government Hospital, Kothamangalam and since he was not admitted therein he was taken to Dharmapuri hospital, Kothamangalam where he died. The accused in his 313, Cr. P.C. statement stated that they shifted their residence from the tharawad house because the eldest brother Thankappan and the second brother used to come to that house late in the night fully drunk and they used to quarrel with the accused. On the date of occurrence they came in the morning for seeing their father and they were sitting in the verandah of 'tharawad' house when Kunjab returned from the place of his work by 7.30 in the night. P.W. 1 slapped second accused on her cheek Kunjan held first accused tightly and first accused tried to wriggle out and there was a tussle. In the tussle his hand was hurt and the accused " left the place and went back to their rented house. It will show that the place of incident and time of incident etc. are not disputed. In F.I. Statement as well as in cross-examination it is revealed that apart from first and second accused, deceased and his wife were only present at the time of stab and nobody else was present. There was a tussle between first accused with the deceased and P.W. 1 and second accused intervened. Some minor injuries were caused to second accused as well as P.W. 1. It was contended that there was no motive for the incident. When there is ocular evidence motive is not very important. Here, motive is spoken to by the accused themselves that there were disputes regarding sharing of the property. If they came in the morning to see the father there was no necessity to wait till 7.30 p.m. The fact that deceased came at 7.30 p.m. is also admitted. According to prosecution as well as the defence tussle started when the deceased asked first accused regarding his return to tharawad house. The second contention is that there was no light. But kerosene lamp and candle light were there for identification. It has come out in evidence that earlier the deceased and P.W. 1, the wife of the deceased and first and second accused were residing together in the house. Close relatives can recognise each other even in darkness here there was sufficient light also. The presence of the accused is not disputed by them.
4. The only question to be considered is whether they are entitled to the benefit of Exception No. 4 as the injury was caused during a fight. Exception is not applicable if injury was inflicted in a cruel manner and the offender had taken undue advantage.
As held by Apex Court in Sikander v. State (Delhi Administration) to invoke Exception No. 4 of Section 300. Culpable homicide as defined in Section 299 must be committed (1) without pre-meditation (2) In a sudden light (3) in a heat of passion or in a sudden quarrel (4) without offenders taking undue advantage or acting with cruelty or in unusual manner. Relationship of the brothers were not cordial. That accused waited there till arrival of deceased, nature of weapon M.O.1 and that he stabbed at the vital parts of his body etc. are against the accused. Thirdly of Section 300 is applicable in this case. Here, seven injuries were inflicted, out of which four were intentional stab injuries (6 are incised wounds). A person who inflicted such four injuries on his own brother has acted in a cruel manner. He has taken undue advantage in repeatedly stabbing his brother even after he fell down. In this connection we refer to the Apex Court decision of in Prabhu v. State of Madhya Pradesh . There, was no evidence to show that the deceased was armed and multiple injuries were caused to make sure that he will not be alive. (See Pandurang Narayana Jawalekar v. State of Maharashtra 1978 Cri LJ 995 and Bhagwan Munjaji Pawade v. State of Maharashtra 1979 Cri LJ 49). In the above circumstances, 4th Exception is not applicable in this case. The trial Court has considered the evidence in a detailed manner and we are of the opinion that no interference is required in the findings of the trial Court who had seen the demeanor of the witness. Since Court imposed only statutory minimum punishment, no grounds are made out in this appeal to set aside or modify the conviction and sentence. We find no reason to interfere with the order of the trial Court.