Kuttiyachan @ Mathai vs State Of Kerala on 9 April, 2019

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Kerala High Court

Kuttiyachan @ Mathai vs State Of Kerala on 9 April, 2019

Equivalent citations: AIRONLINE 2019 KER 98

This appeal is preferred by the appellant who is the sole accused challenging the verdict of the Additional Sessions Judge, Pala dated 17/01/2015 in S.C. No. 97 of 2014 arising out of Crime No. 265 of 2013 of Thidanadu Police Station by which he was found guilty for offences under Sections 302 and 307 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `1,00,000/- (Rupees One Lakh only) for offence under Section 302 of IPC and further to suffer rigorous imprisonment for ten years for offence under Section 307 of IPC. The substantive sentences were directed to run concurrently.

2. Prosecution case, in short, are as under:

The incident occurred on 16/12/2013 at 09.30 P.M. at Kunnumpuram on Thanninavathil-Kunnumpuram road. Deceased Shaji, PW2 Biju and the appellant/accused Kuttiyachan @ Mathai were neighbours. The appellant is residing 75 metres east to the house of PW2. The appellant was in the habit of verbally abusing Crl.Appeal No.238/2015 -:3:- PW2 and the deceased. On 15/12/2013, PW2 and the deceased warned the appellant not to abuse them. The appellant nursed grudge against both the deceased and PW2 and on 16/12/2013 at 09.00 P.M., he came near the house of the deceased and began to challenge them by uttering obscene words. Fed up with the conduct of the appellant, Shaji and Biju came to the place where the appellant was standing. Then the appellant moved away for some distance and again challenged them. Both of them asked the appellant not to abuse them and there occurred an exchange of words between two sides. In the meantime, the appellant attempted to cause hurt to PW2. A scuffle took place. At that time, the appellant took out a knife from his loin and inflicted stab injuries on the chest of the deceased and as many as ten injuries on PW2. The injured were taken to hospital by witnesses and later Shaji was declared dead. PW2 got seriously injured.

3. Prosecution examined PW1 to PW21 as witnesses, marked Exts.P1 to P29 documents and identified MO1 to MO13 objects in Court. After closing of prosecution evidence the appellant was questioned under Section 313 (1) (b) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.'). He denied all Crl.Appeal No.238/2015 -:4:- evidence appeared against him and pleaded innocence. Though initially he stated that he has nothing to explain, later, he filed a written statement in which he stated that on 16/12/2013 at 08.00 P.M., he came to his house and he went to bed at 09.00 P.M. At about 02.00 A.M., somebody knocked on the front door of his house. He opened the door and suddenly the police entered into his house and took him to police station. Police searched the house and took his lunki, shirt and bathing towel. He was falsely implicated in this case. No defence evidence is adduced.

4. Learned counsel appearing for and on behalf of the appellant Sri.Shaji Thomas argued that the appellant is falsely implicated in this case. Prosecution suppressed material facts from the Court including the genesis of the incident. Even according to the prosecution, it was the deceased and PW2 who proceeded to the appellant and they are the ones who started aggression. There was a scuffle and exchange of words. Prosecution has not proved the exact place of occurrence. There are material discrepancies in the testimonies of PW1 and PW2 regarding the incident. It can also be seen that there is neither intention nor pre-meditation on the part of the appellant to Crl.Appeal No.238/2015 -:5:- commit any offence. Even if, for the sake of argument, admitted the alleged acts were done, it squarely falls under the right of private defence enshrined under Section 97 of I.P.C. On the previous day of the incident also, the appellant was threatened by the deceased and PW2. The evidence reveals imminent threat to his life and the whole thing occurred as a result of scuffle. He pleaded to extend the exception of private defence to the appellant and acquit him.

5. On the other hand, learned Senior Public Prosecutor Sri.Alex M. Thombra argued that prosecution proved the case against the appellant beyond reasonable doubt. PW2 is an injured eyewitness. His version is reliable and credible. Evidence of PW1 and PW3 to PW6 corroborates his version. Medical evidence fully tally with the oral deposition of PW2. PW1 deposed the dying declaration made by the deceased to him. Nothing is bought out to shake the evidence of these witnesses. MO1 chisel used by the appellant is found to be blood-stained. All evidence clearly establish the guilt of the appellant and the trial Court is fully justified in convicting the appellant for offences under Sections 302 and 307 of I.P.C. He pleaded to dismiss the appeal as it lacks Crl.Appeal No.238/2015 -:6:- merit.

6. Evidence adduced by the prosecution, in short, are as follows:

PW1 is the second cousin of the deceased Shaji who gave Ext.P1 F.I. Statement to police. PW2 is an injured eyewitness. PW3 is the wife of the deceased Shaji. PW4 is the wife of PW2. PW5 is an attestor to Ext.P2 recovery mahazar of chisel, Ext.P3 mahazar for the bathing towel and Ext.P4 mahazar for the seizure of dress of the appellant. PW6 is a neighbour of the deceased and PW2 took the injured to hospital. PW7 is running a vegetable shop at Thanninalvathil. He brought his vehicle to the spot and took the injured to the hospital. PW8 is an attestor to Ext.P5 inquest report. PW9 is the Doctor who conducted the autopsy of the deceased. Ext.P6 is the certificate issued for the same. PW10 is the Doctor who examined PW2 Biju at the General Hospital, Pala and issued Ext.P7 wound certificate. PW11 is the Doctor who treated PW2 at the Medical College Hospital, Kottayam. Ext.P8 is the discharge certificate and Ext.P9 is the case sheet. PW12 is the Village Officer who prepared Ext.P10 site plan. PW13 is the Secretary of Thidanadu Grama Panchayath who issued Ext.P11 Crl.Appeal No.238/2015 -:7:- certificate. The house belongs to Aleykutty Mathew, Neerananickal House. PW14 is an attestor to Ext.P12 scene mahazar. MO7 to MO9 and MO11 were recovered as per Ext.P12. PW15 is an attestor to Ext.P14 mahazar of MO5 torch. PW16 is an attestor to Ext.P14 mahazar of MO6 torch. PW17 is the mother of the appellant who turned hostile to the prosecution. PW18 is the police constable who videographed the inquest. MO12 is the C.D. PW19 is the police Head Constable who accompanied the dead body which was handed over to the relatives after post-mortem. PW20 recorded FI Statement of PW1 on 17/12/2013 at 12.30 A.M. and registered Ext.P16 FIR. PW21 is the Circle Inspector of Police, Pala who conducted the investigation and laid the charge-sheet.

7. Trial Court arrived at a conclusion that the death of Shaji was a homicide. Evidence of witnesses coupled with medical evidence adduced by the prosecution through PW9 read with Ext.P6 post-mortem certificate and Ext.P5 inquest report would show that the death of Shaji was a homicide. PW9 deposed that he had noted the following ante-mortem injuries on the corpse of the deceased:

"1. Incised penetrating wound 2x1 cm, obliquely placed on the left side of front of chest, with tailing 3.5 cm, arising from its Crl.Appeal No.238/2015 -:8:- lower end directed downwards and to the left. The upper end was 1 cm outer to midline and 15cm below the sternal notch. Both ends of the wound were sharply cut. It entered the chest cavity by cut fracturing the sternum at the level of 6 th costal cartilage, punctured the pericardium and ended by penetrating the front wall of right ventricle of the heart. The track of the wound was directed backwards, upwards and to the right and had a minimum depth of 6 cm. The pericardial cavity contained 200gm of clotted blood.

2. Incised wound 1.5x0.5 cm, horizontally placed on the left side of chest, with tailing 1.5cm directed horizontally towards right. The inner end was 10cm outer to midline and 13cm below the level of nipple. The wound was muscle deep for a depth of 1.5 cm.

3. Incised wound 2x1cm, obliquely placed on the right side of abdomen, with its upper inner end 3 cm outer to midline and 4cm below the level of umbilicus. The wound was muscle deep for depth of 2 cm.

4. Linear abrasion 3cm, on the right side of abdomen, obliquely placed, with its upper inner end 1 cm, outer to the umbilicus and lower outer end touching the injury No.3

5. Abrasion 6x2 cm on the right side of abdomen 2 cm outer to midline and 2cm above the level of umbilicus.

6. Abrasion 2x2cm on the front of right knee.

7. Abrasion 1x0.5 cm on the inner aspect of right ear lobe 1.5cm above its root.

8. Multiple mall abrasions over an area 8x2cm on the back of left forearm, 3cm below elbow.

9. Linear abrasion 21cm, obliquely placed on the back of trunk across the midline, with the right lower end 13 cm outer to midline and 2.5 cm above the top of hip bone".

According to him, death was due to penetrating injury sustained Crl.Appeal No.238/2015 -:9:- to the chest. Injuries mentioned above could be caused by MO1 as weapon of offence. Injury no.1 is sufficient in the ordinary course of nature to cause death. During cross-examination, he deposed that the victim may survive 20 to 30 minutes depending upon the blood loss and it varies from person to person. The injured would be conscious for 20 to 30 minutes after receiving injuries. PW9 clearly deposed that injury no.1 is sufficient to cause death in the ordinary course of nature. It is a penetrating injury which entered the chest cavity by cut fracturing sternum at the level of 6th costal cartilage, punctured the pericardium and ended by penetrating front wall of right ventricle of the heart. Needless to say, the death of Shaji was a homicide. We agree with the Court below on that point.

8. Trial Court found that the appellant herein caused the injuries that lead to the death of Shaji and also attempted to take away the life of PW2 by stabbing with a knife. Prosecution case is that the two incidents took place during the course of same transaction. We have to decide whether the Court below was justified in arriving at its conclusion based on the evidence available on record. To see whether the said findings of the trial Crl.Appeal No.238/2015 -:10:- Court are legally sustainable, we need to re-appreciate the entire evidence placed before us.

9. PW2 is the crucial witness to the prosecution. He is an injured eyewitness. PW2 deposed that the incident took place on 16/12/2013 at 09.30 P.M. The appellant stabbed him with a chisel on his stomach, back and on the left side. Altogether 12 injuries were inflicted. Shaji died of the injuries he sustained during the incident. A water pipe line was drawn to his house through the lane. The appellant out of that enmity hurled obscene words at PW2 and the deceased. On the date of incident, he came to his house at 08.30 P.M. from Thanninalvathil. The appellant Mathai was standing on the pathway leading to the house of PW2 and Shaji. The appellant uttered obscene words. PW2 did not respond for some time. As he was fed up, PW2 went to the house of Shaji with a torch and called Shaji. Shaji came with a torch. At that time, the appellant moved towards the road further and again challenged them to come out. When they came to the road, the appellant moved towards east and from there he again uttered abusive words. Both PW2 and Shaji approached the appellant and asked him to go away. At that time, the appellant threatened to Crl.Appeal No.238/2015 -:11:- kill both of them and attempted to beat PW2. Then, they caught hold of the appellant. There was a scuffle. In the meantime, Mathai (the appellant) took out a chisel from his loin and stabbed both of them repeatedly. He sustained stab on the stomach. Shaji told him that the appellant stabbed him also. There was bleeding from the wounds of Shaji. PW2 ran towards the house of PW1 and called him from the road. PW1 came out and he told PW1 that Shaji had sustained stab injury and is lying on the road. PW1 called Siby and asked to reach the spot with a vehicle. Siby, Benny and Sunil took Shaji and PW2 to hospital in Siby's Maruti van. On the way to hospital, Shaji died. First aid was given to PW2 from Hospital at Pala and he was shifted to Medical College Hospital, Kottayam. It is his version that on the previous day of the incident, the people in the locality repaired the road and when the appellant reached there, both of them warned him not to use obscene words. He identified chisel used by the appellant to stab them as MO1, dresses of the appellant as MO2 and MO3, dhothi of Shaji as MO4, his torch as MO5, Shaji's torch as MO6, his slippers as MO7, Shaji's slippers as MO8 series and slippers of the appellant as MO9 series. His bathing towel is identified as MO10. Crl.Appeal No.238/2015 -:12:- During cross-examination, he stated that his house is 75 metres to the west of the road. The house of PW1 is at the beginning of the lane leading to his house. The house of PW1 is 100 metres away from the house of the appellant. The house of the appellant is on the eastern side of the road. On the western side of the house of the appellant is the property of Cherian Kakkanadu. Himself and Shaji went to question the appellant on his uttering obscene words. They went towards north through the road. Shaji was standing near the electric post by the side of the road. Distance between the electric post and the house of the appellant is about 20 metres. The appellant asked PW2 to go home. As the appellant was trying to attack them, PW2 caught hold of the appellant from the front and Shaji caught hold of him from the back. There was a scuffle. The appellant took out the chisel and stabbed them. He went to the house of PW1 and called him and told him the incident. He denied the suggestion that hurt was not caused to them by the appellant herein. He also denied the suggestion that he is deposing falsehood in Court. MO11 torch belonging to the appellant was marked in re-examination.

10. PW1 is the second cousin of Shaji. He knows PW2 Biju. Crl.Appeal No.238/2015 -:13:- Both of them are his neighbours. He deposed that the incident happened on 16/12/2013 at 09.30 P.M. on Thidanadu- Kunnumpuram road which is 50 to 60 metres north from his house. On that day, after coming back from his work, he went to the provision store at Thanninavathil. By about 08.30 P.M., he returned to his house in the autorickshaw of PW2 Biju along with Shaji. All of them went to their respective houses. When he came out of the house after taking supper, by about 09.30 P.M., he heard obscene words from the way leading to the house of the appellant which was about 150 metres away from his house. He did not pay much attention as the appellant was in the habit of uttering obscene words. He continued to watch news on television. After 4-5 minutes, he heard PW2 calling him by name from the road to come out. PW1 with a torch in his hand went near to PW2 who was standing near the road. He saw PW2 standing on the road with full of blood on his body. PW2 told him that the appellant had stabbed him and Shaji as they went to question the appellant on his calling obscene words. He added that Shaji was lying on the road. PW1 saw injuries on the left, side and back of the body of PW2. PW1 called his father and informed Crl.Appeal No.238/2015 -:14:- the matter. PW1 rushed to the spot where Shaji was lying. He saw Shaji lying on the road. He laid Shaji in supine position. It is his version that Shaji told him that the appellant had stabbed him as he went to question the appellant about his hurling obscene words. He requested PW1 to take him to hospital. Shaji also told him that the appellant had stabbed PW2 also. He could see blood coming out from the chest of Shaji. He called Siby and asked to reach the spot with a vehicle. He had also seen the appellant walking away uttering obscene words with chisel in his hands. He identified the appellant in Court. He further stated that the appellant was residing alone at the house and that his wife and daughter left him because of quarrelsome behaviour and that his mother is residing in another rented house. The injured were taken to the hospital and Shaji was declared dead. PW2 was taken to Medical College Hospital, Kottayam in an ambulance from Government Hospital, Pala. He further stated that there was a dispute about the laying of water supply pipe. On the previous day of the incident, the road was repaired by a freewill service of the local residents. On that occasion, the appellant came there. Then the deceased and PW2 stopped the appellant and warned Crl.Appeal No.238/2015 -:15:- him not to utter abusive words as the appellant was in the habit of using obscene and abusive words. The appellant came next day also and started to air abusive words. He proved Ext.P1 FIS given to police. He identified MO1 chisel which was found in the hands of the appellant at the time of incident. He identified the dresses of the appellant and the deceased. During cross- examination, he stated that there were 8 to 10 people for the freewill service, that took place on the previous day of the incident. He also stated that apart from airing abusive words from the house, the appellant had not quarrelled with him and he has no animosity towards him. He was in good terms with the appellant. His house is 150 metres away from the house of the appellant. PW2 owns a private autorickshaw and since it was not possible to park it in his house, PW2 parks it at a house near to PW1's house. It is his deposition that after he reaching his house on the date of incident, he had not seen anybody on the pathway. He further stated that he went to the place where Shaji was lying with a torch. As he reached near Shaji, he could see the appellant walking away by uttering obscene words. He denied the suggestion that he is telling falsehood at the instance of Police. Crl.Appeal No.238/2015 -:16:- He also denied the suggestion that he is speaking lies especially that the deceased had told him that it was the appellant who caused injuries to him and PW2.

11. PW3 is the wife of the deceased Shaji. She deposed that she knew the appellant for the last nine years. The uncle of the appellant is her neighbour. The uncle of the appellant, PW2 and PW3 were using the same lane for going to the road. A water pipe line was drawn through the lane. There was a dispute between the uncle of the appellant and themselves regarding the drawing of the water pipe line. After the said dispute, the appellant used to come near their house and utter obscene words after consuming liquor. The local people repaired the road on 15/12/2013. Her husband had told her that there was a quarrel on that day. On the day of incident, her husband came back from his work at 08.30 P.M. Before that, the appellant was standing near their house and was uttering obscene words. Her husband came back hearing those obscene words of the appellant. Her husband did not respond for sometime. He went inside the house. After sometime, PW2 came to their house and called her husband. Her husband went with PW2 with a torch. She advised her husband Crl.Appeal No.238/2015 -:17:- not to go. But her husband went with PW2. After 10 minutes, the wife of Biju (PW4) came to her house and told that there was a sound from the road. They went to the road. She saw her husband being taken to the hospital. She identified the articles belonging to her husband. During cross-examination, she stated that the quarrel with regard to the laying of pipe line was 5 to 6 months back. Water connection was not given to the uncle of the appellant. Her house is about 50 metres away from the house of PW1 Sunil.

12. PW4 is the wife of PW2 Biju. She deposed that her husband sustained injuries in the incident. The appellant was in the habit of uttering obscene words on her husband and the deceased. On the previous day of the incident, the people of the locality repaired the road. On that day, her husband and Shaji warned the appellant not to use obscene words. Her husband came after work at 08.30 P.M. At that time, the appellant was uttering obscene words from near the house of Shaji. Fed up with the same, PW2 went to the road. At 09.30 P.M., she heard a sound of vehicles from the road. She went to PW3 Bindu and they went to the road. They saw an Omni van proceeding with Shaji and Crl.Appeal No.238/2015 -:18:- PW2.

13. PW6 Benny Mathew deposed that he is a neighbour of PW2 and Shaji. Along with his brother, he took Shaji and PW2 to the hospital. It is his version that on 16/12/2013 at 09.30 P.M., he heard the appellant uttering obscene words. PW1 telephoned him and informed that the appellant had stabbed Shaji and PW2. He rushed to the place of incident and saw PW2 sitting by the side of the road near the house of PW1. Shaji was seen lying on the road with injuries. Siby came with Maruti van. Firstly, they took Shaji and came near to PW2 and took him also. Both of them were taken to hospital. During cross-examination, he stated that he is residing 75 metres away from the house of PW1. He heard the appellant uttering obscene words while he was sitting in his friend's house. When he saw PW2, the wife of PW1 was near PW2.

14. PW7 deposed that he is running a vegetable shop at Thanninalvathil. The incident happened at 09.30 P.M. As he was about to close his shop, PW1 called him over phone and informed the matter. PW1 asked him to reach the spot with a vehicle and he reached there in his Maruti van. They took Shaji and PW2 to the hospital. Shaji was declared dead. PW2 was taken to Medical Crl.Appeal No.238/2015 -:19:- College Hospital, Kottayam. In cross-examination, he deposed that the house of PW1 is 750 metres away from Thanninavathil. PW1 called him by 09.30 P.M. They reached Government Hospital, Pala by 10.15 P.M. They took Biju to the hospital by 11.00 P.M.

15. PW10 is the Doctor who examined PW2 at the Government Hospital, Pala. Ext.P7 is the wound certificate issued by him. He deposed that he noted a stab wound 4x1 cm over the abdomen, stab wound 5x2 cm over the anterior aspect of abdomen, lacerated wound 5x2 cm over the left side of chest. PW10 gave him first aid and referred him to Medical College Hospital. He did not notice all the injuries as the injured was in a critical condition.

16. PW11 treated PW2 Biju at Medical College Hospital, Kottayam. Ext.P8 is the discharge certificate and Ext.P9 is the case sheet. He deposed that there were 10 stab wounds on the body of PW2. They are:

1. Stab wound 3x2 cm left upper abdomen.

2. Stab wound 2x2 cm right epistaxis

3. Stab wound 3x2 cm left sub clavicular region.

4. Stab wound 2x1cm left lateral chest wall

5. Stab wound 1x1 cm left lower chest wall.

Crl.Appeal No.238/2015

-:20:-

6. Stab wound 2x1 cm left para spinal region.

7. Stab wound 2x1 cm left lower para spinal area.

8. Stab wound 1x1 cm left lower para spinal area.

9. Stab wound 1x1 cm left posterior axillary area.

10. Stab wound 1x1 cm left lower posterior chest wall.

It is his opinion that all injuries noted above is possible using MO1 chisel. PW2 suffered fracture of rib and haemopneumothorax and the injuries were life threatening. PW2 had air and blood collection in the chest..

17. Learned counsel for the appellant argued that the motive for the crime is not proved by the prosecution. Even according to the prosecution, there is no enmity for the appellant towards the deceased or PW2. The issue which was existing 6 months prior to the incident in connection with water pipe line was amicably settled by the parties under the mediation of Panchayath authorities. Of course, the said contention is worthy of acceptance as the incident occurred 6 months prior to the present incident. But prosecution has another definite case in relation to the enmity of the appellant towards the deceased and PW2. On the previous day of the incident, both of them warned the appellant on his uttering abusive words which was a Crl.Appeal No.238/2015 -:21:- persisting nuisance for the people of the locality. This is the cause for immediate provocation according to the prosecution. Evidence of PW1, PW2 and PW4 proves this aspect and there is no fruitful cross-examination on that point. Even otherwise, motive assumes no relevance in the case at hand as direct evidence is available.

18. He further argued that even according to the prosecution story, the appellant was chased by PW2 and the deceased with torches and that they caught hold of him from front and back and restrained him wrongfully. In the light of the warning both of them had given to the appellant on the previous day, he developed fear of death and in the impulse to save himself, the incident might have occurred somehow (if at all the witnesses are believed). It is argued that there is every possibility for a group attack as it is impossible for a person like the appellant to inflict so many injuries to two able bodied persons within the short span of 2 minutes, especially when the scuffle is admitted. That apart, prosecution suppressed the genesis of the incident and the version before the Court is a fabricated story. Let us consider the evidence to see whether the said contention of the appellant is sustainable. As already stated, the appellant was Crl.Appeal No.238/2015 -:22:- in the habit of abusing people of the locality verbally and on the previous day of the incident, the deceased and PW2 warned the appellant on the same. This is the immediate reason for fury of the appellant. It can also be gathered from evidence that on the next day, the appellant was waiting on the road by the time PW1, PW2 and the deceased reached the place in the autorickshaw at 08.30 P.M. Then he began to utter abusive language by going near the house of the deceased and PW2. They did not respond for sometime. The appellant challenged both of them to come out. As they came out, the appellant moved further and challenged again. Again the appellant moved towards the eastern side of the road near to his residence. It is in evidence that PW2 caught hold of the appellant only when he was about to beat PW2. It is not like the deceased and PW2 first caught hold of the appellant and started aggression. Both PW2 and the deceased were unarmed. This is a case in which the appellant caused mischief to the deceased and PW2 who were sitting in their respective houses and made them come out by challenging them and thereafter attacked them who were unarmed. Only two torches were there with the deceased and PW2. On the other Crl.Appeal No.238/2015 -:23:- hand, the appellant had MO1 chisel in his loin. Apparently, no injury is seen on the appellant. PW2 clearly deposed that the appellant had taken out MO1 and stabbed him 12 times. He also stabbed Shaji on his chest who fell down on the spot. PW2 rescued himself by running towards the house of PW1. There is no justification for the aggression done by the appellant. The entire episode is initiated by the appellant herein. Provocation came from his side. He acted in a cruel manner. His case of exercise of right of private defence cannot be sustained in the light of proved facts and circumstances.

19. Learned counsel for the appellant further contended that there is discrepancy in the measurement of weapon allegedly used for the crime. In Ext.P2 mahazar, it is recorded that MO1 has a length of 25 c.m. But in Ext.P27 FSL report, it is given as 25.7 c.m. He challenged the recovery of weapon in the light of the fact that prosecution did not have an explanation as to how they opened the door of the house of the appellant. We do not find any force in this argument. Ext.P2 is a mahazar prepared using ordinary measuring tools like measuring tapes whereas, FSL is equipped with facilities including screw gauge to measure the Crl.Appeal No.238/2015 -:24:- length in exactitude. The discrepancy in measurement will in no way affect the case of the prosecution as MO1 chisel was clearly identified by PW2 who is the injured eyewitness and other witnesses as weapon used by the appellant.

20. The evidence detailed above and the discussion show that the following aspects are proved to the satisfaction of this Court:

i. The appellant, the deceased, PW1 and PW2 were neighbours.

ii. The appellant was in the habit of uttering obscene words after consuming liquor which was a perpetual nuisance to the nearby people.

iii. On 15/12/2013, there was a freewill service to clear the lane in front of the parties involved including the deceased and PW2. The appellant was warned by the deceased and PW2 not to repeat his uttering of obscene words anymore. iv. The deceased, PW1 and PW2 reached their respective houses in the autorickshaw of PW2 by 08.30 P.M. after their work on the date of incident. The appellant was found on the road.

Crl.Appeal No.238/2015

-:25:- v. The appellant came near to the house of Shaji and PW2 and started uttering abusive words which Shaji and PW2 ignored initially. But later, PW2 reached the house of Shaji and both of them came to the road to question the appellant with two torches in their hands. Both Shaji and PW2 were unarmed. vi. The appellant continued his abuse and he proceeded towards east of the road near to his house. Shaji and PW2 went near to the appellant. The appellant asked PW2 to go home. He continued to abuse them.

vii. The appellant attempted to beat PW2 by stating that he would kill them. At that point, PW2 caught hold of the appellant from the front and Shaji caught hold of him from the back. There was a scuffle.

viii. Immediately, the appellant took out MO1 chisel from his loin and began to attack PW2 and Shaji by stabbing them. He stabbed Shaji on his chest. PW2 received as many as 12 stab injuries on his body. Shaji fell down. ix. PW2 ran to the house of PW1 and told him about the incident. He told that the appellant had stabbed Shaji and himself. This is admissible as res gestae i.e., things spoken Crl.Appeal No.238/2015 -:26:- in the course of the same transaction by an injured under Section 6 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). He fell near the house of PW1. x. PW1 rushed to the spot and saw Shaji lying on the road having injuries on his chest with bleeding. He laid him in supine position. Shaji told PW1 that it was the appellant who stabbed both himself and PW2 with the chisel. He requested to take him to hospital. This is a dying declaration admissible in evidence under Section 32(1) of Evidence Act. PW1 saw the appellant walking away with MO1 chisel. He called Siby over phone and asked to bring a vehicle to the spot.

xi. The Maruti van of PW7 was used to take the deceased and PW2 to the hospital. Shaji was pronounced dead at Government Hospital, Pala. PW9 who issued Ext.P6 post- mortem certificate stated that Shaji died due to the injury sustained to the chest which is noted as injury no.1 in Ext.P6. PW9 clearly deposed that injury no.1 is sufficient to cause death in the ordinary course of nature. It is a penetrating injury which entered the chest cavity by cut Crl.Appeal No.238/2015 -:27:- fracturing sternum at the level of 6 th costal cartilage, punctured the pericardium and ended by penetrating front wall of right ventricle of the heart.

xii. PW2 was taken to MCH, Kottayam in an ambulance. Evidence of Doctors PW10 and PW11 coupled with Exts.P8 and P9 would show that PW2 had sustained as many as 10 stab wounds. He sustained rib fracture and haemopneumothorax. Air and blood had entered into the chest cavity. The injuries were grave in nature and were inflicted during the course of stabbing Shaji to death. It is not a case where the appellant ran away after the incident. It is in evidence that PW2 ran towards PW1's house for help and that the appellant was seen walking with MO1 chisel by PW1 even at the time when he reached the spot. PW2 was not spared by the appellant but he was saving himself by fleeing.

xiii. Based on Ext.P20 information given by the appellant, PW21 reached the house of the appellant as led by him and recovered MO1 chisel as the appellant took it and handed it over to him. The said weapon is stained with blood though Crl.Appeal No.238/2015 -:28:- origin and grouping could not be done. Similarly, the dress of the appellant is also blood-stained.

21. Learned counsel for the appellant finally argued that even assuming that there is proof that the accused had committed the alleged offence, it was only on account of a sudden provocation and the heat of passion and at best, he could be punished for having committed offence u/s 304 Part II of I.P.C. But, this argument, according to us, is not sustainable. As already discussed earlier, the prosecution evidence would clearly show that the accused virtually provoked the deceased and PW2 to go after him by abusing them. Initially, none of them did react. Later, they came out without any weapon. They had only torches with them. The accused proceeded to his house continuing the abuse and the deceased and PW2 went after him. Thereafter, the evidence is that accused started the scuffle with deceased and PW2 and thereafter the deceased and PW2 were stabbed. It was the deceased who started the attack and the scuffle started at the instance of the accused alone which clearly indicates that the aggressor was none other than the accused and that too by using a dangerous weapon like chisel, which he had with him and Crl.Appeal No.238/2015 -:29:- apparently he knew that the injury he might inflict on the deceased and PW2 would be fatal as they were inflicted on vital parts of the body. Under such circumstances, we do not think that the argument that the offence is punishable only u/s 304 of I.P.C. cannot be sustained.

22. From the above deliberations, it can safely be concluded that the appellant herein had stabbed both Shaji and PW2 Biju with the intention and knowledge to kill them. He uttered that he would kill them. In the process, Shaji succumbed to the injuries and PW2 who ran away from the aggression of the appellant was saved after painstaking treatment. Offence under Sections 302 and 307 of I.P.C. are clearly made out by the prosecution and the Court below is justified in convicting the appellant.

In the result, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                A.M.BABU

Rp              //True Copy//                      JUDGE
                PS to Judge
 Crl.Appeal No.238/2015

                         -:30:-

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