Kerala High Court
Babu vs State Of Kerala on 4 July, 2019
Equivalent citations: AIRONLINE 2019 KER 584
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 04TH DAY OF JULY 2019/13TH ASHADHA, 1941
CRL.A.No.886 of 2015
AGAINST THE JUDGMENT IN SC 1334/2008 of ADDITIONAL
DISTRICT & SESSIONS COURT - VI, KOLLAM
CRIME NO.470/2004 OF Anchal Police Station
APPELLANT:
BABU,
AGED 43 YEARS,
S/O KUMARAN,
BABU VILASAM, MALAVATTAM,CHERANADU,
VADAMON MURI, ANCHAL VILLAGE.
BY ADVS.
SRI.K.SIJU
SRI.P.VIJAYA BHANU (SR.)
SRI.S.ABHILASH
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.06.2019, THE COURT ON 04.07.2019 DELIVERED THE
FOLLOWING:
CRL.A NO.886 OF 2015
..2..
JUDGMENT
N.ANILKUMAR, J:
The aforesaid appeal has been filed against the judgment and order dated 7.9.2015 in S.C.No.1334/2008 on the file of the court of Additional District and Sessions Judge-VI, Kollam, convicting the appellant/accused under Sections 352,325 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and sentenced the appellant (hereinafter referred to as 'the accused') with life imprisonment and to pay a fine of Rs.1,00,000/-,in default rigorous imprisonment for five years under Section 302 of IPC, rigorous imprisonment for three months for the offence under Section 352 of IPC and sentenced to undergo rigorous CRL.A NO.886 OF 2015 ..3..
imprisonment for seven years and to pay a fine of Rs.25,000/- and in default of payment of fine to two years for the offence under Section 325 of IPC and all sentences should run concurrently.
2. Facts and circumstances giving rise to this appeal are as under:-
On 8.12.2004 at 6 p.m., at the corridor on the eastern side of the Beverages Corporation retail liquor shop bearing No.FL-1/243 which has been functioning in the building bearing door No.XI/338 of Anchal Panchayath situated on the southern side of Anchal-
Ayoor Public Road, the accused used criminal force and fisted on the left eye of the deceased and banged his head forcibly against the cement wall with an intention of CRL.A NO.886 OF 2015 ..4..
causing his death. As a result of the assault, the deceased sustained grievous injury and later succumbed to the injuries.
3. PW21 recorded Ext.P1 First Information Statement of PW1 and registered Ext.P20 First Information Report for the offence punishable under Section 324 read with Section 34 IPC. The accused died on 15.4.2004 while he was undergoing treatment in the Medical College Hospital, Thiruvananthapuram. As the Circle Inspector of Police was on Sabarimala duty, PW21 conducted initial investigation in this case. PW21 proceeded to the Medical College Hospital, Thiruvananthapuram and conducted inquest on the deadbody of the deceased from the mortuary of the CRL.A NO.886 OF 2015 ..5..
hospital and prepared Ext.P11 inquest report. PW21 filed additional report to the court incorporating Section 302 IPC against the accused. On the same day, he inspected the scene of occurrence and prepared Ext.P22 mahazar. PW22 seized blood stained clothes from the scene of occurrence and forwarded to the court. Further investigation in this case was taken over by PW22 with effect from 16.12.2004. PW22 seized the clothes worn by the deceased by Ext.P26 and forwarded to the court. On 5.1.2015 at 10.30 am, the accused was arrested from Panaveli Junction by Ext.P29 arrest memo. On being questioned, the accused confessed that the clothes were kept inside his house and he would show the same if he was taken there. Based on the above information as led CRL.A NO.886 OF 2015 ..6..
by the accused, PW22 proceeded to the house of the accused and recovered MO3 lungi and MO4 shirt. Later, the accused was produced before the jurisdictional Magistrate. Learned Magistrate remanded the accused to judicial custody. On completion of investigation, final report against the accused was filed under Sections 352,325 and 302 of IPC. Ext.P1 First Information Statement was given by PW1, who is none other than the wife of the deceased Salim.
4. On receipt of the final report, the learned Magistrate, who took cognizance of the offence, after complying with the formalities, committed the case to the Court of Sessions, Kollam on 7.10.2008. Learned Sessions Judge took cognizance of the offence under CRL.A NO.886 OF 2015 ..7..
Section 352, 325 and 302 IPC and issued summons to the accused. When the accused appeared before the court, after hearing both sides charge for the offences under Sections 352,325 and 302 of IPC was framed. The charge was read over to the accused and explained to him in detail to which the accused pleaded not guilty and claimed to be tried. Thereupon, the prosecution was permitted to adduce evidence in support of its case.
5. The prosecution altogether examined PWs.1 to 23 and got marked Exts.P1 to P35 and four material objects as MOs.1 to 4. Exts.D1 to D4 contradictions were marked on the side of the defence.
6. After the close of the prosecution evidence, the accused was questioned under S.313(1)(b) with regard to CRL.A NO.886 OF 2015 ..8..
the incriminating circumstances appearing against him in the evidence for the prosecution. He stated innocence. He further stated that he had not gone for consuming liquor and somebody deliberately implicated him falsely in this case.
7. The trial judge did not consider this case as a fit case for recording an acquittal under Section 232 Cr.P.C. The accused was therefore, called upon to enter on his defence and to adduce evidence which he might have in support thereof. No oral evidence was adduced by the accused. After conclusion of the trial, the learned Sessions Judge as per judgment dated 7.9.2015 found the accused guilty of the offence charged against him and sentenced him as indicated in paragraph 1 of this CRL.A NO.886 OF 2015 ..9..
judgment.
8. We heard Sri.Vijaya Bhanu, the learned Senior Counsel for the appellant/accused and Sri.Alex M.Thombra, the learned Public Prosecutor, who appears for the State.
9. The following points arise for consideration:-
1.Has the prosecution proved that PW1's husband Salim died as a result of homicidal injuries on 15th December, 2004?
2.Has the prosecution proved that the accused intentionally and knowingly caused the death of Salim due to injuries to his head and chest and he has thereby committed the offence of murder?
3. Are the conviction entered and sentence passed against the appellant/accused sustainable?
10. On 10.12.2014, PW15 Dr.Shamughan was working as Medical Officer, Surya Hospital, Anchal. CRL.A NO.886 OF 2015 ..10..
Evidence on record would show that he had examined the deceased on the same day at about 10.40 am and issued Ext.P15 wound certificate noting the following injuries:-
(1)contusion and oedema both over eye lids (2) contusion and oedema about 8.6 cms over the forehead.
The alleged cause of injury is also noted in Ext.P15 that patient was beaten by hands of a known person on 8.12.2004 at 6 p.m at the Beverages Corporation outlet at Anchal. As the patient was semi conscious and vomiting, PW15 referred the patient to the Medical College Hospital, Thiruvananthapuram on request. CRL.A NO.886 OF 2015 ..11..
11. PW16 Dr.Sunil Kumar, Assistant Professor, Neuro Surgery, Medical College, Thiruvananthapuram issued Ext.P16 treatment certificate. According to him, he admitted the deceased on 10.12.2004 and the deceased expired on 15.12.2004. As per the case sheet, according to PW16, the deceased sustained head injury. PW16 made the above diagnosis on the basis of CT scan examination. He also noted fracture of left orbit.
12. Autopsy over the deadbody of the deceased was conducted by PW17 Dr.G.Balakrishna Pillai, Professor and Head of Department of Forensic Medicine, Government Medical College, Kottayam. Ext.P17 is the Postmortem Certificate prepared by PW17. The ante mortem injuries and other findings recorded by PW17 CRL.A NO.886 OF 2015 ..12..
are the following:-
"INJURIES (ANTE MORTEM)
1. Abrasion 0.8x0.5 am on the right side of forehead 6 cm outer to midline and 2.5 cm above eyebrow. Underneath frontal bone and the right side showed vertical fracture.
2. Abrasion 3.5x2 cm on the left side of face 1 cm outer to the outer angle of eye.
3.Abrasion 2x2 cm. on the front of middle of left ear lobe, 2 cm inner to the outer margin.
4. Abrasion 1.5x1 cm, on the Left side of face 1.5 cm below and 1.5 cm inner to the lobule of ear.
5. Contusion of the back half of left temporalis muscle.
6.Contusion 10x7x0.3 cm on the left side of forehead and adjoining part of scalp, the lower end was found overlying the eyebrow.
Fracture fragmentation of left side of arbital plate of frontal bone. Brain showed subdural blood clot on the left side 5x3x1 cm, sticking to the dura underneath. Bilateral subarachnoid haemorrhage per sent. Contusion 1x0.5 cmx0.5cm on the under aspect of right temporal lobe 6 cm behind the tip.
7. Multiple small abrasions over an area of 3.5x3cm on the left side of neck 11 cm outer to midline and 2 cm below the lobule of ear.
8. Contusion 8.5x2x0.3 cm on the left side of chest, 6 cm outer to midline and just below collarbone.
CRL.A NO.886 OF 2015 ..13..
9. Fracture of sternum between the first and second piece of body. Right side of mediastinum showed infiltration of blood over an area of 8x7x0.5 cm. Upper part of pericardium also showed infiltration.
10. Multiple small abrasions over an area of 2x1.5 cm on the outer aspect of right elbow.
11. Multiple abrasions over an area 2.5x1 cm on the back of left wrist.
12. Abrasion 0.5x0.5 cm. on the back of left hand 6 cm below wrist.
13. Abrasion 3x2 cm, on the front of left knee.
14. Abrasion 0.5x0.5 cm on the top of left foot and 10 cm below ankle.
15. Multiple abrasions over an area of 3.5x0.5 cm. on the top of right foot 4 cm in front of ankle.
16. Abrasion 0.5x0.5 cm on the back of right little finger, overlying the inner aspect of middle knuckle.
17. Abrasion 0.3x0.2 cm. on the back of middle of nail bed of right little finger.
18. Abrasion 0.5x0.3 cm. on the back of inner aspect of middle knuckle, of right middle finger.
19. Multiple small abrasions over an area 1.5x1 cm on the back of right elbow. All the abrasions were covered with adherent brownish to black scab. All the contusions were brown in colour. Subdural blood clot, was thick, non friable and brown. Subarachnoid was brown.
Air passages contained blood stained fluid. Lower lobes of both lungs showed consolidation. Rest of the lung tissue was congested and oedematous. CRL.A NO.886 OF 2015 ..14..
Stomach contained yellowish fluid having no unusual smell, mucosa congested, submucosal haemorrhages present. Liver showed fatty change, spleen friable, kidneys were pale with distinct corticomedullary demarcation and cortical haemorrhages. Urinary bladder was empty, its mucosa was normal. All other internal organs were congested otherwise normal.
Viscera and sample of blood preserved and sent for chemical analysis. Blood group was tested at the Blood Bank, MCH, Tvpm was found 'O' Rh positive."
13. PW17 opined in Ext.P17 certificate that the deceased died as a result of injury sustained to his head and chest. Thus, there is overwhelming evidence to show that Salim died as a result of sustaining fatal injuries to his chest and head.
14. PW3-Sushi was conducting a hotel behind Beverage Corporation at Anchal. PW1's husband Salim was a worker in the said hotel during the relevant time. CRL.A NO.886 OF 2015 ..15..
PW1 testified that her husband used to return from the hotel around 7 p.m. in the evening. On 8.12.2004, PW4 Shanavas and PW8 Noushad, who are closely related to the deceased, came to PW1's residence along with her husband Salim. She noticed contusion of his left eye. On enquiry, she was told that the accused fisted him in front of the Beverage shop at Anchal. She made an attempt to persuade him to go for treatment on the very same day itself. However, her husband Salim was not inclined to go and told her that he would go in the next day. The next day, her husband went to the eye hospital along with PW6, who is the mother of the deceased. PW9 Dr.Rajendran testified that he treated the deceased on 9.12.2004 and administered eye drops. Suspecting CRL.A NO.886 OF 2015 ..16..
head injury, he referred the case for further treatment. On that day, according to PW1, her husband came back around 6 p.m. in the evening. On the next day, her husband went for work around 10 a.m. She asked him to take her husband's father along with him to the Hospital on that day. Around 5.30 p.m., she heard that her husband collapsed in front of the Beverages Shop at Anchal. She also came to know that PW3 Sushi and her father-in-law took her husband to the nearest hospital at Anchal from where he was referred to Medical College Hospital, Thiruvananthapuram for better management. On the next day, she went to the Medical College Hospital, Thirvuananthapuram. Her husband was admitted in the intensive care unit of the Medical College CRL.A NO.886 OF 2015 ..17..
Hospital. After initial management, he was brought to the general ward on 11.12.2004. Stating the above facts, she gave Ext.P1 statement before the Police. She identified MO1 lungie and MO2 shirt worn by the deceased on the date of incident.
15. On cross-examination, Exts.D1 to D4 contradictions were marked. According to PW1, her husband was an occasional drinker. However, she denied the fact that she did not state that her husband used to drink every day and hence she could not notice in detail. Ext.D1 is a contradiction. She stated before the Police that her husband came at 7p.m. on 8.12.2004. However, in Ext.D2, she denied the fact that she did not state before Police that her husband came around 8 p.m. on CRL.A NO.886 OF 2015 ..18..
that day contrary to her deposition before the police. She further testified that she did not state before the Police that on 8.12.2004 around 6 p.m., one Babu, who is a loading and unloading worker assaulted her husband in front of the Beverages Corporation Retail Shop at Anchal. Evidently, Ext.D3 contradiction is against her previous statement before the Police. She also denied her statement in Ext.P1 that she got reliable information from her husband that the accused and his brother-in-law assaulted her husband. Ext.D4 contradiction is against her previous statement in Ext.P1.
16. PW2 Suresh, PW3 Susheel, PW4 Shanavas and PW10 Raji are cited to prove the occurrence. They turned hostile to the prosecution denying the occurrence. CRL.A NO.886 OF 2015 ..19..
Nothing is brought out in evidence to prove that the occurrence took place as alleged by the prosecution on the date of occurrence.
17. PW7 is the brother-in-law of the deceased. He was conducting a teashop at Anchal. According to him, PW4 Shanavas was also working with him in the teashop. He stated that around 10.30 am on 10th, the deceased Salim was taken to the Medical College Hospital. He further stated that while so, the deceased Salim's father and mother accompanied them.
18. PW8 supported the prosecution case. He is the son-in-law of deceased Salim. According to him, on 8.12.2004 he came to the teashop of PW7 where PW4 Shanavas was employed. Along with PW4, PW8 went CRL.A NO.886 OF 2015 ..20..
outside to purchase meals for them. They came in front of the Beverages Outlet at Anchal. Just behind the Beverages Outlet, the deceased was employed in the hotel owned by PW3. According to him, he wanted to avoid his brother-in-law Salim on that day. Just to avoid his presence there, he stood in front of the Beverages outlet on the opposite side. While so, an autorickshaw bearing Regn.NO.KL-02/M107 came in front of the Beverages Corporation. He saw the accused alighting from the said autorickshaw and going towards the corridor. Immediately, he heard a commotion there. According to PW8, he did not go there as he wanted to avoid his brother-in-law. After sometime, the deceased came and boarded the autorickshaw. He further stated CRL.A NO.886 OF 2015 ..21..
that the commotion might be a result of dispute among the drunkards. However, the commotion continued for sometime. Hence, they went to the place where the commotion originated where they could notice blood oozing from the left eye of the deceased. PW8 helped the deceased to stand up whereupon PW3 Sushi came near to the deceased and entrusted Rs.100/- with the deceased for going to the hospital. However, the deceased refused to go to the hospital whereupon as desired by the deceased, PW8 and PW4 extended help for the deceased to accompany him to reach home. On being enquired, the deceased told PW8 that the deceased inflicted injuries on his left eye and fisted on his chest and hit against the wall and as a result of which, the CRL.A NO.886 OF 2015 ..22..
deceased sustained injuries.
19. We have the oral evidence of Pws.1 and 8 of what had happened on the date of occurrence. PWs.1 and 8 supported the case of prosecution completely. Ext.P1 statement lodged by PW1 before PW19 would indicate that the evidence tendered by PW1 before court is trustworthy. Information received from the deceased touching the occurrence is a relevant fact. The version of PW1 is supported by the oral evidence of PW8. The circumstances in this case eloquently would indicate that as desired by the deceased, immediately after the occurrence, the deceased was taken to PW9, who referred him for better management. PW15, who examined the deceased on 10.12.2004, noted contusion CRL.A NO.886 OF 2015 ..23..
and edema both over eye lids and contusion and edema about 8.6 cms over the forehead. Later, the deceased was taken to the Medical College, Hospital where he succumbed to the injuries. The fact that the deceased sustained injuries in the occurrence is evident from Ext.P17 Postmortem Certificate issued by PW17.
20. Going by Ext.P17 and evidence tendered by PW17, it is clear that the fatal injuries are injury No.7 and injury No.9. PW17 ruled out the possibility of the above injuries being caused by a fall from the steps touching forcibly on a hard surface. In the case on hand, the injuries were sustained to the injured on 7.12.2004. He succumbed to the injuries on 15.12.2004. On the date of occurrence, he came back home as usual. The next CRL.A NO.886 OF 2015 ..24..
day he went to the Doctor who referred him for better management. It is very difficult to believe that the deceased sustained serious injuries on the date of occurrence and he came back home along with his friends as usual and waited for the next day for treatment. In view of the above, a doubt arises as to whether the death of the deceased was as a result of getting proper treatment immediately after the occurrence. The delay in getting the treatment immediately might be one of the reasons which accelerated the death of the deceased. It is evident from the evidence tendered by PW1 and PW8 that despite their request to get medical treatment at the earliest, the accused in his own volition decided to get medical treatment leisurely.
CRL.A NO.886 OF 2015 ..25..
21. Going by the evidence adduced, it is very clear that the accused has not used any weapon to cause the death of the deceased. It is further evident that the deceased was a drunkard. He was employed just in front of a Beverages Outlet at Anchal. The occurrence took place in front of the Beverages Outlet consequent to a commotion. The accused has no case that he was not present there. No such contention was raised. None has a case that the accused had the intention to cause the death of the deceased. Further, no contention was raised that the accused had intended to cause such bodily injury as is likely to cause death. Hence the question arises as to whether the accused had knowledge that he was likely by such act caused the death of the deceased. Even if it CRL.A NO.886 OF 2015 ..26..
was assumed that the deceased had suffered fatal injuries, as contained in Ext.P17, by no stretch of imagination, can it be assumed that the accused intended to cause the death of the deceased? An intention to cause death has to be gathered from several circumstances. One of the circumstances is as to whether the accused used any weapon to inflict injuries on the deceased. In the case on hand, it is proved that the injuries sustained to the deceased were not on account of any weapon. Irrelevant materials contained in Exts.D1 to D4 which do not in any way corrode the credibility of PW1 cannot be labelled as major contradictions.
22. Having regard to the statements of PW17 the Doctor, who conducted the postmortem, PW1 and PW8, CRL.A NO.886 OF 2015 ..27..
we are satisfied that the accused inflicted injuries on the deceased. On going through the evidence of PW8, it is clear that the accused inflicted injuries on the body of the deceased pursuant to an impulsive act in front of a Beverages Retail Outlet and the acts and subsequent conduct of the accused would not indicate that these acts were done either with an intention to cause death of the deceased or with the knowledge that the acts would lead to the death of deceased. In fact necessary ingredients under Sections 299 and 300 of IPC are clearly absent in this case. The evidence convincingly establishes that the deceased had suffered the injuries at the hands of the accused.
23. The question now is whether the injuries can be CRL.A NO.886 OF 2015 ..28..
held to be simple hurt or of a grievous hurt under Section 320 of IPC. There is no case for the accused that the deceased sustained grievous hurt on grave and sudden provocation. In the case on hand, the accused was charged under Section 325 of IPC and Section 352 of IPC. No evidence was adduced to prove that the assault or criminal force against the deceased alleged to have been committed by the accused was as a result of grave and sudden provocation or without grave and sudden provocation. Since the accused was charged under Section 325 of IPC, in the facts and circumstances of the present case, further charge under Section 352 of IPC is absolutely unwarranted. Section 325 of IPC is punishable for voluntarily causing grievous hurt except CRL.A NO.886 OF 2015 ..29..
in the case provided by Section 335 of IPC. Section 335 of IPC provides punishment for voluntarily causing grievous hurt on provocation. Further, there is no case for the prosecution that the deceased sustained grievous hurt by means of any weapon as defined under Section 326 of the IPC. However,the injuries sustained to the deceased are coming within the purview of grievous hurt coming under Section 320 of IPC. Logically, the injury sustained to the deceased must be held to fall within the ambit of Section 325 of the I.P.C.
24. Learned Senior Counsel Sri.Vijaya Bhanu submits that the accused had no intention to cause the death of the deceased. According to the learned counsel, the incident which led to the death of the deceased was CRL.A NO.886 OF 2015 ..30..
on account of an untoward incident in front of the outlet of the Beverages Corporation at Anchal. In view of the above circumstances, the learned counsel submits that in the event of finding the accused guilty for the offence under Section 325 IPC, the sentence already underwent by the accused may be treated as sentence for the offence punishable under Section 325 of Cr.P.C. Under Section 325 of IPC, the punishment prescribed is with imprisonment of either the description for a term which may extend to 7 years and also shall be liable to fine. The court below convicted and sentenced the accused for rigorous imprisonment for three months for the offence under Section 352 IPC. The accused was further sentenced to undergo rigorous imprisonment for 7 years CRL.A NO.886 OF 2015 ..31..
and a fine of Rs.25,000/- and in default of payment of fine, to undergo 2 years rigorous imprisonment for the offence under Section 325 of IPC. Offences punishable under Section 352 IPC and 325 IPC are triable by a Judicial First Class Magistrate Court.
25. Having considered the submission made, we are of the view that the maximum sentence of rigorous imprisonment for a period of three years along with the sentence of fine of Rs.25,000/- and in default of payment of fine, to undergo sentence for a further period of three months shall meet the ends of justice for the offence punishable under Section 325 of IPC.
26. The appeal is allowed in part. The conviction and sentence imposed under Sections 352 and 302 IPC is CRL.A NO.886 OF 2015 ..32..
set aside. In modification of the sentence imposed by the court below under Section 325 of IPC, we sentence the accused to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for a further period of 6 months more. The fine collected shall be given as compensation to the children of the deceased as ordered by the court below. The accused is entitled to get set off for the period underwent by him in judicial custody. Accused stands acquitted for the offences punishable under Sections 352 and 302 of Indian Penal Code.
27. The accused was arrested and produced before the learned Magistrate on 5.1.2005. He was released on bail on 8.2.2005. The accused was convicted and CRL.A NO.886 OF 2015 ..33..
sentenced by the court below on 7.9.2015. He has been undergoing sentence since then.
This Criminal Appeal is partly allowed.
Sd/-
A.M.SHAFFIQUE, JUDGE Sd/-
N.ANIL KUMAR, JUDGE MBS/