Kottayam vs By Advs on 12 April, 2019

[Cites 11, Cited by 0]

Kerala High Court

Kottayam vs By Advs on 12 April, 2019

1.Appellant was the first accused in S.C.211/2013 on the file of the court of session, Kottayam division. He was convicted and sentenced under Secs 302 and 449 of the Indian Penal Code (IPC) by the additional sessions judge, Pala. Accused 2 to 5 were acquitted.

2.Stated below is the prosecution case : There was a quarrel and heated exchange of words between the appellant and PW11 Rejimon. Both were autorikshaw drivers and the dispute was regarding parking of their vehicles. Thereafter the appellant along with his two brothers (accused 2 and

3), mother (fifth accused) and a friend (fourth accused) went to the house of PW11 in search of him to attack him. The appellant and accused 2 to 4 trespassed into the varandah of the house of Babu, the father of PW11. The appellant hit Babu with a stone on his head. He sustained Crl.A.100/2015 3 serious injuries and fell down in the courtyard of his house. He was hit with stones by accused 2 and 3. When Babu's father (PW1) tried to rescue him, the appellant with the stone hit on the face of PW1. When PWs 2 and 5 came to the courtyard, the fourth accused beat PW5 with a stick on the nose and right knee and the second accused kicked PW2. The appellant snatched the stick from the fourth accused and beat Babu and PW5. The fifth accused who is the mother of the appellant and accused 2 and 3 stood in the courtyard of the house of Babu and abetted her children by instigating them to kill Babu. The incident was at around 6.15 pm on 5.8.2012. Babu succumbed to the head injury on 2.1.2013.

3.The trial court framed charges against the accused persons under Secs 114, 302, 323, 324 and 449 of IPC read with IPC 34. They denied the charges and claimed to be tried. PWs 1 to 21 were examined and Exts P1 to P46 and MOs 1 to 9 were marked on the side of the prosecution. Exts D1 Crl.A.100/2015 4 to D3 were marked on defence side during the course of prosecution evidence. The accused persons were examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C.). They were not acquitted under Sec.232 of Cr.P.C. They were called upon to enter on their defence and adduce evidence. They did not adduce any oral evidence, but Exts D4 and D5 were marked on their side.

4.The appellant who was convicted under Secs 302 and 449 of IPC was sentenced to imprisonment for life and a fine of Rs 1,00,000/- under Sec.302 of IPC and rigorous imprisonment for ten years under Sec.449 of IPC. The sentences were directed to run concurrently. The appellant was acquitted of the other offences charged against him.

5.Heard Sri.P.Vijaya Bhanu, the learned senior counsel appearing for the appellant and Sri. Alex M.Thombra , the learned senior public prosecutor.

Crl.A.100/2015

6.The trial court acquitted accused 2 to 5. The appellant was acquitted of the charges except those under Secs 302 and 449 of IPC. Therefore we have to mainly concentrate on the allegations touching house-trespass and the alleged overt acts of the appellant against Babu.

7.Admittedly there was a quarrel between the appellant and PW11 in connection with the parking of their vehicles. PW11 spoke to the said quarrel. It is not necessary to decide who was at fault in parking the vehicle. According to the prosecution, the appellant and the co-accused went to PW11's house in search of him and committed murder of his father, Babu. The defence version is that the accused persons went to the house of Babu to complain about his son, but Babu cut the second accused with a sickle to cause him an injury. It is also the defence version that there occurred a scuffle and Babu fell on a gas cylinder kept in the courtyard of his house and sustained injury on his head. The prosecution should prove its case beyond Crl.A.100/2015 6 reasonable doubts. If the defence version is probable, the prosecution may fail.

8.PWs 1, 2 and 5 are the key witnesses for the prosecution. They are the father, mother and wife of Babu. The locale of crime was their property. We shall discuss their evidence.

9.PW1 gave the FI statement, Ext P1. He spoke as follows :

The incident was on 5.8.2012. He was taking rest at his house. At 6.15 pm he heard a noise outside his house. His son Babu opened the door and came out followed by PW1.

The appellant asked where was PW11 and hit Babu on his head with a stone with force. Babu fell down in the courtyard. The appellant with a stick beat Babu when he lay on the ground.

10.PWs 2 and 5 also deposed to what PW1 deposed to. PWs 2 and 5 spoke that the incident occurred at 6.15 pm on 5.8.2012 at the varandah and courtyard of their house. Crl.A.100/2015 7 They stated that when Babu came to the varandah, he was hit on his head with a stone by the appellant who came in search of PW11. According to PWs 2 and 5 as well, Babu fell down in the courtyard and the appellant beat Babu with a stick.

11.PWs 1, 2 and 5 maintained their stand in cross- examination too. We do not find anythng in their depositions to suspect their evidence on the overt act of the appellant hitting on the head of Babu with a stone. The witnesses identified MO1 to be the stone with which Babu was hit on his head by the appellant.

12.PWs 1, 2 and 5 spoke to the sustaining of injuries by them and also to the overt acts of accused 2 to 4, besides the role of the fifth accused instigating their children to do the crime. We need not consider such evidence since the trial court acquitted accused 2 to 5 and did not convict the appellant for voluntarily causing hurt to PW1. PWs 7 to 9 Crl.A.100/2015 8 were also examined as eyewitnesses. But they did not see the appellant hitting Babu with stone. What PWs 7 to 9 saw was Babu lay on the ground and the remaining part of the incident. Therefore their evidence need not be considered while considering the aforesaid overt act of the appellant.

13.Babu survived for almost five months after the incident. In the meantime he was managed as an inpatient in different hospitals. He was discharged from the Amrutha Institute of Medical Sciences. He died at his house a few days after his discharge from the hospital. His body was subjected to post-mortem examination. PW4 did it. Ext P3 is the autopsy report. PW4 deposed to the injuries he saw and observed at the time of autopsy. Injury No.1 alone is relevant in this appeal. It reads thus :

"Healed surgical craniotomy wound (question mark shaped) 28.5 cm long, pale in colour seen on the left frontoparietotempral region of head, its front lower end 8 cm above eyebrow and 3 cm ourter to midline and back lower and in front of left ear. On dissection the scalp tissue underneath showed an Crl.A.100/2015 9 yellow area 4 x 3 cm, in parietal region. Part of left parietal and temporal bone were seen surgically removed 14 x 11 cm. The dura was seen lustureless and adherent to the scalp tissue above. The sub dural area showed yellow brown stain. There was softening with yellowish brown in colour 7 x 3 x0.8 cm at the junction of left parietal and temporal lobe of brain. The left basal ganglia showed softening, over an area 3 x 2 x 0.5 cm. The ventricles of the brain were seen dilated with cerebrospinal fluid sharing cloudy appearance. (The yellowish area seen under the dura, and yellowish brown coloured softening were due to resolved subdural haemorrhage and brown contusion respectively. The above injury No.1 is surgically modified wound."

PW4 opined that injury No.1 could be inflicted with a stone like MO1. He testified that the said injury is sufficient in the ordinary course to cause death. He stated that injury No.1 was not possible to be resulted from a simple fall. The medical evidence corroborates the oral evidence that Babu died as a result of the hitting with MO1 stone on his head. He was hit with it by the appellant. Babu died about five months after the incident, but his death is referable to the injury inflicted on his head by the appellant with MO1 Crl.A.100/2015 10 stone.

14.Absolutely nothing is available in the ocular evidence in support of the defence version that Babu cut the second accused with a sickle. PWs 1, 2 and 5 denied the defence version suggested to them. The defence version is silent as to what was the provocation for Babu to attack the second accused with a sickle.

15.However, it is in evidence that the second accused sustained an injury on the date of incident. The doctor who examined the second accused on 5.8.2012 and who issued Ext P9 wound certificate was examined as PW14. He spoke that he examined the second accused at 7.45 pm on 5.8.2012. The second accused sustained a 'C' shaped incised wound on the left side of the frontal region of the scalp. According to PW14, the second accused came with the allegation of assault by Babu and five relatives of Babu near the house of Babu at 7.00 pm. The prosecution Crl.A.100/2015 11 proved by ocular evidence that the incident occurred at 6.15 pm. The second accused was examined by PW14 at 7.45 pm. It is not disclosed as to where was he till 7.45 pm after the incident at 6.15 pm. Ext P9 and its author's evidence are quite insufficient to accept the version that the second accused sustained injury at the time of the incident.

16.Sri.P.Vijaya Bhanu, the learned senior counsel for the appellant, drew our attention to the evidence of PWs 9 and

10. But their evidence does not suggest that the second accused sustained any injury at the time of the incident. PWs 9 and 10 stated that the second accused had a fall in the nearby lane while returning after the incident. The evidence of Pws 9 and 10 would only suggest the possibility of sustaining a post incident injury by the second accused. What PW10 stated in cross-examination was that he saw blood on the head of the second accused when the second accused came out of the house of the Crl.A.100/2015 12 accused. The evidence of PW10 was not that blood was seen on the head of the second accused when he came out of the house of Babu. The evidence of PWs 9 and 10 does not suggest sustaining of any injury by the second accused at the time of the incident.

17.Ext P40 is the report of the chemical examination. Item No.3 in Ext.P40 is the blood stained soil collected from the scene of occurrence. Items 6 and 7 are the blood stained shirt and lungi of the second accused. Blood of 'O' group was detected in items 3, 6 and 7. The learned senior counsel submitted that Ext D4 laboratory report and Ext D5 driving licence would prove the second accused to be a person of 'O' group blood. According to the learned counsel, detection of 'O' group blood in the soil collected from the scene of occurrence proves that the second accused was attacked with a sickle at the time of the incident. The argument is not acceptable. Blood of Babu was taken on a cotten gauze at the time of post-mortem Crl.A.100/2015 13 examination and it was subjected to chemical examination. Item No.8 in Ext P40 is the said cotton gauze. Ext P40 report of chemical examination proves that blood of 'O' group was detected in item No.8 cotton gauze. That means Babu was also a person of 'O' group blood. The evidence of PW3 suggests that blood bled from the site of would on the head of Babu. Her such evidence is corroborated by PW20 who examined Babu at the hospital. Babu lay in the courtyard with bleeding would. The 2 nd accused did not contend that he had a fall in the courtyard. The soil collected from the scene of occurrence was stained with the blood of Babu and not of the second accused.

18.The attempt of the appellant has been to build a case on the strength of the injury sustained by the second accused on the date of incident. It was argued that the prosecution failed to explain the injury on the person of the second accused. This court has held that the prosecution is not bound to explain each and every injury found on the body Crl.A.100/2015 14 of the accused unless there are materials on record to show that such injury has some nexus with the incident in which death was caused. The decision is Abdul Rasheed v. State of Kerala (2013 (1) KHC 418). Such a nexus is absent in this case.

19.For reasons stated already, we find that the cause of death of Babu was the injury inflicted on his head by the appellant with MO1 stone. It was argued, alternatively, by the learned senior counsel Sri.P.Vijaya Bhanu that the offence, if any, committed by the appellant was only culpable homicide not amounting to murder punishable under Sec.304 of IPC, 2nd paragraph. We find force in the said submission. The circumstances do not suggest that the appellant had the intention to cause the murder of Babu. He was not the target of the appellant. The latter came to the house of the former in search of PW11. The offence was committed without any premeditation. It was committed soon after the quarrel and heated exchange of Crl.A.100/2015 15 words between the appellant and Babu's son PW11. Babu was not even the target of the appellant. But he caused the death of Babu by hitting with MO1 stone on the head. We are of the opinion that the offence committed by the appellant was not murder, but culpable homicide not amounting to murder. We are not satisfied that the appellant had the intention to cause death. Therefore the 1st paragraph of Sec.304 of IPC is not attracted. The appellant caused death with the knowledge that his act was likely to cause death. He is liable to be convicted under the 2nd paragraph of Sec.304 of IPC. His conviction and sentence under Sec.302 of IPC are liable to be set aside. We do so. Rigorous imprisonment for five years and a fine of Rs 75,000/- appear to us as just, reasonable and adequate sentence under Sec.304 of IPC.

20.The appellant committed criminal trespass by entering into the varandah of the dwelling house of Babu with intent to commit an offence. The appellant thereby committed the Crl.A.100/2015 16 offence of house-trespass. But he committed house- trespass not for committing any offence punishable with death. Therefore Sec.449 of IPC is not attracted. We therefore set aside his conviction and sentence under Sec.449 of IPC. Only Sec.451 of IPC is attracted. We convict him thereunder and impose on him a sentence of rigorous imprisonment for two years and a fine of Rs 15,000/-.

21.The appeal is allowed in part. The conviction of the appellant under Sec.302 of IPC and his conviction under Sec.449 of IPC are set aside. The sentences imposed on him under Secs 302 and 449 of IPC are also set aside. He is convicted under Secs 304 (2nd paragraph) and 451 of IPC. He is sentenced to rigorous imprisonment for five years and a fine of Rs 75,000/- (seventy five thousand only) under Sec.304 of IPC and rigorous imprisonment for two years and a fine of Rs 15,000/- (fifteen thousand only) under Sec.451 of IPC. If he defaults the fine imposed under Sec.304 of IPC, he shall undergo rigorous imprisonment for Crl.A.100/2015 17 a further period of one year. He shall undergo rigorous imprisonment for three months more in the event of his default to pay the fine imposed under Sec.451 of IPC. The substantive sentences of imprisonment shall run concurrently, but the default sentences shall run consecutively. Rs 75,000/- (seventy five thousand only) out of the fine amounts, if realised, shall be paid to the wife and children of Babu in equal proportion as compensation under Sec.357 of Cr.P.C. The appellant shall be entitiled to set off under Sec.428 of Cr.P.C for the detention, if any, undergone by him in connection with this case. The trial court shall comply with rule 114 of the Criminal Rules of Practice, Kerala.

A.M.SHAFFIQUE Judge A.M.BABU Judge Mrcs/8.4.

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