Subash @ Manikuttan vs State Of Kerala on 20 March, 2019

[Cites 11, Cited by 0]

Kerala High Court

Subash @ Manikuttan vs State Of Kerala on 20 March, 2019

Equivalent citations: AIRONLINE 2019 KER 36

This appeal has been preferred by the appellant challenging the verdict of the 1st Additional Sessions Judge, Mavelikkara in S.C.No. 847/2011 dated 29/01/2013 by which the appellant is found guilty for offences under Sections 302, 341 and 323 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `35,000/- (Rupees Thirty Five Thousand only) with a default stipulation of rigorous imprisonment for two years for offence under Section 302 of I.P.C. and also sentenced to suffer simple imprisonment for six months for offence under Section 341 of I.P.C. No separate sentence is awarded for offence under Section 323 of I.P.C. All sentences were directed to run concurrently.

2. The case of the prosecution is as follows:

The deceased Balakrishna Pillai is the father of PW1, who is the de facto complainant. On 16/05/2011, at 07.15 P.M., the appellant herein, due to his previous enmity towards Balakrishna Crl.Appeal No.418/13 -:3:- Pillai, with an intention to do away with him, wrongfully restrained him at about 400 metres north of Moorthitta Junction Mannar- Vallakkalil Road, Ward No.IV of Mannar Panchayath, Pavukkara Muri, Kurattisseri Village and slapped him on both cheeks as a result of which the victim fell down. Thereafter the appellant kicked on the chest of the victim with his foot wearing a hawai chappal three to four times by uttering "you need not live hereafter". The victim tried to resist the same by turning upside down, but the appellant again kicked the victim, which resulted in fracture of 2nd to 4th ribs on the left side and 2nd to 5th ribs on the right side. On 17/05/2011 between 11.00 A.M and 06.00 P.M, the victim died.

3. The case has the history as detailed herein:

Initially, based on the statement given by PW1, the case was registered under Section 174 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') as Crime No. 248/2011. Subsequently, a report was filed by the police altering Section 174 and substituting Sections 341, 323 and 306 of I.P.C. Again, the investigating officer concerned altered the Section to one Crl.Appeal No.418/13 -:4:- under Section 302 by deleting 306 of I.P.C. by filing another report.

4. Evidence adduced in the case, in short, are as follows:

PW1 is the son of the deceased. He gave Ext.P1 FIS to police based on which Ext.P1(a) FIR was registered. PW2 to PW5 are cited as occurrence witnesses. PW6 turned hostile to the prosecution. PW7 to PW9, PW11 and PW18 are attestors to different columns in Ext.P3 inquest report. PW12 is the attestor to Ext.P5 scene mahazar where the deceased was assaulted. MO5 shirt was identified by him. PW13 is the daughter of the deceased. PW14 is the wife of the deceased. PW15 is the Village Officer, Perattissery who prepared Ext.P6 scene plan. PW16 is an attestor to Ext.P2 mahazar prepared at the time of recovering the chappal worn by the appellant at the time of incident. PW10 proved Ext.P4 certificate and report. PW17 is the Doctor who conducted post-mortem examination of the victim and issued Ext.P7 certificate. PW19 is the then S.I. of Police, Mannar who recorded Ext.P1 FIS given by PW1. He conducted the inquest and prepared Ext.P3 report. He proved Exts.P1, P1(a), P9, P10 and P5 Crl.Appeal No.418/13 -:5:- scene mahazar. PW20 produced Ext.P12 FIR register, Ext.P13 report and order on it which is Ext.P13(a), Ext.P15 property register and the relevant entries therein. She also identified MO3 to MO5. PW21 is the C. I. Of Police, Mannar who completed the investigation and laid the charge-sheet against the appellant herein.

5. Defence has a definite case that the death of Balakrishna Pillai was a suicide by poisoning. During cross- examination, they also presented a case that it was PW1 who inflicted injuries on the deceased during a fight between them. Per contra, the prosecution alleged that death of the victim was a homicide which resulted from the stamping on the chest of the deceased by the appellant herein due to which seven ribs of the deceased were fractured on either side of thorax. Before going to discuss the evidence of ocular witnesses, it would be appropriate to consider the opinion evidence and other scientific evidence available in this case to ascertain the nature and cause of death of the victim.

6. The following materials are available before us to Crl.Appeal No.418/13 -:6:- throw light in the above aspect:-

(i) Ext.P3 inquest report prepared by PW7 on 18/05/2011 at 08.45 A.M.

(ii) Ext.P7 post-mortem certificate issued by PW17 Doctor coupled with her deposition in Court.

(iii) Ext.P8 final opinion of PW17 about the cause of death of the victim. Ext.P8(a) is its original.

(iv) Ext.P4 chemical analysis report by PW10.

7. Learned counsel for the appellant argued that the Court below erred in appreciating the evidence on record even in concluding the cause of death of the victim. He argued that there was no external injuries on the corpse of the victim as per Ext.P3 inquest report. The alleged incident happened on 16/05/2011 at 07.15 P.M. The alleged time of death is between 11.00 A.M. and 06.00 P.M on 17/05/2011. Prosecution is still in dark even about the time of death. Nobody knows what had happened to the victim during the interim period. There is no evidence to show that the death was caused because of the injuries found on the body of the victim. Ribs are seen to be broken. But it can also be Crl.Appeal No.418/13 -:7:- seen that none of the internal organs were injured by the said fractured ribs. The medical opinion rendered through Exts.P8 and P8(a) is nothing but an afterthought. At the time of post-mortem, PW17 was not of the view that death was caused by the rib fracture. He did not opine that it is the combined effect of rib fracture and some other causes. After obtaining Ext.P4 chemical analysis report, the prosecution case is framed in such a way to indicate that breaking of ribs by itself in the ordinary course of nature causes death.

8. In reply, learned Public Prosecutor argued that there is no doubt as to the fact that the appellant herein had caused injuries on the victim on the previous day of his death. He was stamped brutally. His seven ribs were broken on either side of the thorax. PW17 clearly deposed that death was due to injuries sustained to the chest and head. It is true that PW17 waited for Ext.P4 report to rule out other possibilities like poisoning. But it in no way brushed aside the finding already recorded in Ext.P7 which clearly describes the rib fracture and head injuries. The victim died due to the consequences ensued from the assault Crl.Appeal No.418/13 -:8:- done by the appellant herein. The assault on the victim by the appellant herein is clearly proved by the prosecution through occurrence witnesses PW2 to PW6. He intended to kill the victim and he stamped the old man on his chest several times, which is a vital part of the body. The argument that proper medical attention could have saved the appellant from death cannot be a reason to avoid the penalty.

9. Court below arrived at a conclusion that the appellant herein committed murder of the deceased as he inflicted the injuries that led to his demise on the previous day of his death.

10. We heard the counsel for the appellant Sri.K.K.Dheerendrakrishnan and learned Senior Public Prosecutor Sri.Alex M.Thombra in detail and perused the records.

11. In our view, two points are to be decided to dispose of the matter. Firstly, whether the death of Balakrishna Pillai was a homicide or not. If so, secondly, whether the appellant herein is the one who had inflicted such injuries on the victim with an intention to cause death.

12. Ext.P4 chemical analysis report is proved through Crl.Appeal No.418/13 -:9:- PW10. PW17 issued Ext.P7 post-mortem certificate after conducting autopsy of the victim on 18/05/2011 between 12.30 P.M. and 01.40 P.M. He deposed that he had noted the following ante-mortem injuries on the victim:-

"1. Contusion 11x9x1 cm, over right side of face. Just infront of tragus of ear extending to right temporalis muscle.

2. Contusion 4x3x0.5 cm over left side of chin inner end 1 cm to the left of midline.

3. Multiple abrasion over an area of 16x8 cm over back of right forearm, upper edge at elbow.

4. Linear abrasion 2x0.1 cm vertical front of left leg 4 cm below knee lower edge 10 cm above wrist.

5. Contusion 28x9x0.5 cm back and outer aspect of left arm and forearm. Lower edge 10 cm above wrist.

6. Contusion 12x4 cm inner aspect of left forearm upper edge 3 cm below elbow.

7. Contusion and multiple abrasions over an area 17x12 cm back of left side of trunk, upper edge 21 cm below top of shoulder and 6 cm to the left of midline.

8. Superficial laceration 1x0.5 cm at small of back.

9. Multiple contusions over an area 25x16 cm involving front of chest, upper edge at collar bone right edge 6 cm to the right of midline.

10. Contusion of left temporalis muscles 11x9 cm.

11. Fracture of ribs 2, 3, 4 on left side in mid clavicular line with contusion of intercostal muscles 8x7cm. Contusion of left lung front portion 6x5x0.5 cm involving Crl.Appeal No.418/13 -:10:- upper lobe.

12. Fracture of ribs 2, 3, 4 and 5 on right side in mid clavicular line with contusion of intercostal muscles 10x8 cm. Contusion of right lobe of lung 7x5x0.5 cm involving upper and middle lobes."

13. Opinion as to cause of death is given in Ext.P7 as under:-

"Reserved pending Chemical Examiner's report. He had sustained injuries to chest and head prior to death".

14. Ext.P8 is the final opinion and Ext.P8(a) is the original of it dated 28/05/2011. The final opinion rendered by PW17 is that the deceased died due to injuries to the chest. According to him, injury nos. 11 and 12 are fatal injuries which are sufficient in the ordinary course of nature to cause death. The said opinion is vehemently challenged by the learned counsel for the appellant on the ground that it was an afterthought and result of inexperience or over zeal of the expert. It is unheard that rib fracture which does not make any impact on the internal organs of the body result in the ordinary course of nature to cause death. According to him, the prosecution does not have a case in the beginning, that the injuries noted in Ext.P7 were fatal in the first place. On the other hand, PW17 suspected poisoning or some Crl.Appeal No.418/13 -:11:- other factor as cause of death, which is evident from his report.

15. In our assessment, the said argument of the learned counsel for appellant sounds logical. Opinion of an expert is a relevant fact. Court may take into consideration the expert opinion. Appreciation of evidence and forming of final decision is the business of Courts of law. When the medical opinion goes beyond the well known principles, Court can form its own opinion based on available material. If there is any doubt regarding the cause of death, the benefit should go to the accused.

16. PW10 completely negated the possibility of poisoning as the cause of death. Ext.P4 report corroborate the evidence of PW10. Medical evidence adduced by the prosecution indicates that ribs 2 to 4 on the left side and ribs 2 to 5 on the right side in the mid clavicular line with contusion of intercostal muscles 8 x 7 c.m. and 10 x 8 c.m respectively are noted. The injured survived for about 24 hours. The broken ribs did not pierce the lobs of the lung and hence there was no blood accumulated in the plural cavity. Ext.P7 shows that PW17 did not find the noted injuries as the cause of death of the victim at the time of post-mortem. Crl.Appeal No.418/13 -:12:- Initially, he does not have a definite case that those injuries were fatal or they were sufficient in the ordinary course of nature to cause death. Subsequent version of PW17 regarding the nature of injuries cannot be accepted as such in the light of the facts and attending circumstances of this case. Hence we don't find any reason to agree with the finding of the trial Court that prosecution proved beyond doubt the cause of death of the victim. The evidence would only reveal that a grievous injury was caused to the victim as there was a rib fracture.

17. Next question to be considered is whether there is material to show that the appellant herein is the one who caused the said injuries on the victim. Place of occurrence is proved to be 200 metres north of Moorthitta junction in Mannar-Vallakkalil road, Ward No.IV of Mannar Panchayath by eyewitnesses and corroborated by Ext.P5 scene mahazar and Ext.P6 scene plan. PW2 deposed that he had seen the incident. He was in the shop of Kannan which is on the western side of Mannar-Vallakkalil road. The place of incident was in front of the house of said Kannan in Mannar-Vallakkal road. He heard a hue and cry and went to the Crl.Appeal No.418/13 -:13:- place of occurrence and saw the appellant assaulting the deceased. It is his version that the victim was hit by the appellant twice or thrice due to which he fell down lying on the back. The appellant kicked twice or thrice on the chest of the victim saying that he would do away with the victim. The victim cried aloud and he turned upside down to avoid further harm. The appellant again kicked two to three times and the victim cried out for help. In the meantime, PW2 and PW3 Suku intervened. PW2 identified the appellant in Court. He also identified MO1 as the shirt found on the shoulder of the victim at the time of incident. The victim was on his way after taking bath.

18. PW3 is another occurrence witness. He is residing about 100 metres from the house of the victim and 50 metres away from that of the appellant. He deposed that he witnessed the incident. It happened between 07.00 and 07.15 P.M. The incident happened in front of Ramanattu house belonging to Kannan. Kannan had a petty shop near his house. As PW3 reached there, he saw the appellant and the deceased engaged in exchange of words. The appellant slapped on the cheek of the Crl.Appeal No.418/13 -:14:- victim and he fell down. Though PW3 caught hold of the victim, he could not stop him. The appellant kicked twice or thrice on the chest of the victim. PW3 along with PW2 again tried to prevent the appellant but in vain. The appellant again kicked on the back of the victim twice. Then PW2 and PW3 stopped the appellant from further assaulting the victim. He identified MO2 series as the chappals of the appellant seized as per Ext.P2 mahazar. PW16 is also an attestor to it. He also identified MO1 and MO2 series.

19. PW4 is the brother of the deceased. He deposed that the incident was on 16/05/2011 at 07.15 P.M. at Vallakkalil- Mannar road in front of Ramanattu house and the house of Rajalekshmi teacher. He was proceeding from north-south through the said road to the temple near the house of the deceased to attend Devaswom committee of Thrippavoor temple. It was his practice to go through that way to temple at about 07.00 P.M. everyday. He is an office bearer of the temple. According to him, he was walking behind the deceased at some distance. The appellant herein slapped on the cheek of the victim and also stamped on his chest. During the process, the appellant Crl.Appeal No.418/13 -:15:- uttered that he would kill the victim. The deceased was crying aloud and he turned upside down after receiving kicking on the chest for avoiding further assault. The appellant continued to stamp on the chest of the victim. It is his further version that PW2 and PW3 intervened. He deposed that he did not intervene because he was suffering from serious bodily ailments.

20. PW5 is also cited as a witness by the prosecution. He had seen only a part of the incident. According to him, on 16/05/2011 at 07.15 P.M., he saw the victim coming towards south after taking bath. PW5 was on his way back to his home after purchasing some household articles. He heard a hue and cry. He went to his house and left the articles there and came back to the place of occurrence which was only 10 to 60 feet away from his house. It is his deposition that at the time he reached the spot, he had seen the victim lying on the road and PW2, PW3 and the appellant herein were standing there. He returned to his house. After some time, he saw the victim going towards east to his family house which is one house away from his house. According to PW5, the victim told him that Subhash Crl.Appeal No.418/13 -:16:- had beaten him severely.

21. PW6 is a person who is engaged in road tarring works. He stated that, on 16/05/2011, he was there with his workmen. The mixing plant was near Pavukkara-Kadapramadom junction. At about 07.00 P.M, he heard a hue and cry, but he did not go to the place from where the cry was heard. PW6 turned hostile to the prosecution.

22. Perusal of the evidence of PW2 to PW6 clearly shows that the victim had suffered injuries at the hands of the appellant herein. The evidence of PW2 is corroborated by PW3 to PW5 in material particulars. Of course, PW4 is the brother of the victim. But that alone is not a ground to discard his evidence. It can be seen that though cross-examined at length, nothing material is brought out by the defence to discredit the version of these witnesses. The Court below is right in finding to the extent that it was the appellant herein who caused the injuries on the victim that caused rib fracture. The victim who was a man of 65 years old was badly beaten and stamped by the appellant. Medical evidence corroborates the ocular version of PW2 to PW5 Crl.Appeal No.418/13 -:17:- regarding the parts of the body where injuries were inflicted. As detailed earlier, we do not agree with the opinion of PW17 that the injuries were sufficient in the ordinary course of nature to cause death. But evidence of PW17 clearly shows that there was fracture of ribs and other injuries on the victim and it could be caused by stamping while the victim was in a lying position.

23. The only question is whether the appellant had the intention to kill the victim as alleged by the prosecution. Admittedly, no weapon is used in the case. Evidence clearly shows that the appellant stamped the victim multiple times on his chest and that resulted in fracture of his ribs. It is also in evidence that the victim went to his home and was there till he was found dead. It is also in evidence that the victim did not attempt to go to a hospital for getting medical attention. Even PW1 stated that he had a conversation with the appellant after the incident. The case was registered as one under Section 174 of Cr.P.C initially. The facts and circumstances of the case and the evidence on record did not show any pre-meditation or intention on the part of the appellant to commit murder of the victim. The Crl.Appeal No.418/13 -:18:- hurt inflicted on the victim was a grave one and it can be seen that no weapon of offence is used. Court below seriously erred in finding the appellant guilty under Section 302 of I.P.C.

24. Though there is no evidence to prove the commission of offence u/s 302 of I.P.C., grievous hurt has been caused by the appellant to the deceased. 'Grievous hurt' had been defined under S.320. 'Fracture or dislocation of a bone' or 'any hurt which endangers life 'are treated as grievous hurt.

25. In the present case, when there is evidence to prove that the assault committed by the accused caused fracture of the rib bones, he is punishable for offence u/s 325 of I.P.C. Hence, we find the accused guilty for the offence u/s 325 of I.P.C. The punishment provided for offence u/s 325 of I.P.C. is with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine. The appellant is therefore convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of `25,000/-. If the fine is not paid, he shall undergo default sentence for a period of 3 months. If the fine is recovered, the said amount shall be paid Crl.Appeal No.418/13 -:19:- to the legal heirs of the victim.

In the result, the appeal is partly allowed. Conviction and sentence passed by the trial Court under Section 302 of I.P.C. is hereby set aside. The appellant is found guilty for offence under Section 325 of I.P.C. and is sentenced to undergo rigorous imprisonment for five years and to pay a fine of `25,000/- (Rupees Twenty five thousand only), in default of payment of fine, to undergo rigorous imprisonment for 3 months. On recovery of the fine, the same shall be paid to the legal heirs of the victim. Conviction and sentence under Section 341 of I.P.C. are confirmed. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. and if the period of sentence is over, he shall be released forthwith.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                               A.M.BABU

Rp                                               JUDGE

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