Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946 CRL.A NO. 598 OF 2012 AGAINST THE JUDGMENT DATED 30.03.2012 IN SC NO.203 OF 2010 OF SPECIAL C IDAMALAYAR INVN & 5 ADDITIONAL DISTRICT COURT, ERNAKULAM/ II ADDITIONAL MACT, EKM APPELLANT/ACCUSED NO.3:
SURESHKUMAR AGED 34 YEARS S/O.RAJAPPAN PILLAI, CHERUKARA PUTHENVEEDU, IDANADUBHAGOM, CHATHANNOOR KARA, MEENADU VILLAGE, KOLLAM DISTRICT. BY ADV SRI.P.M.ZIRAJ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION IN CRIME NO.1461 OF 2006. SHEEBA THOMAS..GP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH CRL.A.579/2012, 486/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946 CRL.A NO. 579 OF 2012 APPELLANT/ACCUSED NO.2: LAIJU AGED 41 YEARS AGED 41 YEARS SON OF BHALRISHNA PILLAI SARADA MANDIRAM KUMMALLOOR KARA CHATHANNOOR VILLAGE KOLLAM DISTRICT BY ADV SRI.P.M.ZIRAJ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM REPRESENTED BY CIRCLE INSPECTOR OF POLICE ERNAKULAM CENTRAL POLICE STATION IN CRIME NO.1461 OF 2006 SHEEBA THOMAS..GP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH CRL.A.598/2012 AND CONNECTED CASES AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946 CRL.A NO. 486 OF 2012 AGAINST THE ORDER/JUDGMENT DATED 03.03.2012 IN SC NO.203 OF 2010 OF SPECIAL C IDAMALAYAR INVN & 5 ADDITIONAL DISTRICT COURT, ERNAKULAM/ II ADDITIONAL MACT, EKM APPELLANT/ACCUSED NO.1 JOLLY AGED 39 YEARS S/O.VARKEY, NELLOOR HOUSE, MULLAPUZHASSERY, PATHANAMTHITTA DIST BY ADV SRI.P.M.ZIRAJ RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING CIRCLE INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION, IN CRIME NO 1461 OF 2006 SEENA C...GP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2024, ALONG WITH CRL.A.598/2012 AND CONNECTED CASES AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.G. AJITHKUMAR, J.
----------------------------------------------------------- ----------------------------------------------------------- Dated this the 29th day of May, 2024
JUDGMENT
The appellants were tried by the V th Additional Sessions Judge, Ernakulam, on a charge for the offences punishable under Sections 302 r/w 34 of the Indian Penal Code, 1860. The trial court found the 1 st accused guilty of the offence punishable under Section 304 Part ll of the IPC, while accused Nos. 2 and 3 guilty of the offence punishable under Section 323 of the IPC. The 1 st accused was sentenced to undergo simple imprisonment for a period fo 5 years and to pay a fine of Rs.1,00,000/-. Accused Nos.2 and 3 were sentenced to undergo simple imprisonment for a period of 3 months each. Aggrieved by the said judgment of conviction and sentence, 1 st accused filed Crl.Appeal No.486 of 2012, the 2 nd accused filed Crl.Appeal No.579 of 2012 and the 3 rd accused filed Crl.Appeal No.598 of 2012, invoking the provisions of Section 374(2) of the Code of Criminal Procedure, 1973.
2. The incident in question occurred on 06.12.2006.
The deceased, Sri.Mansingh was descending the stairs from the 3rd floor of Luzia Hotel, situated near KSRTC bus stand, Ernakulam. 4 persons, cited as CWs 2 to 5 were there along with him. The accused persons came opposite and the deceased abused them. Getting inferiorated on that, the 3rd accused caught hold of his shirt, and the 2 nd accused made blows with his hands. After that the 1 st accused, kicked him, causing him to fall down and that resulted in hitting his head on the stair case, and sustaining injuries. He succumbed to the injuries.
3. The prosecution has examined PWs 1 to 10, and
proved Exhibits P1 to P5. The accused were questioned under Section 313 (1)(b) of the Code. Apart from denying the incriminating circumstances, they stated that they were innocent. In the statements filed by them, they denied their involvement in such an incident. The defence evidence brought in was contradictions in the statements of the prosecution witnesses, which are Exhibits D1 to D4. The trial court, after considering the evidence in detail,
found that the accused did the alleged acts. But, it was
held that no common intention in doing those acts could be
gathered from the evidence on record. Accordingly, the accused were found guilty of the acts which each of them independently did.
4. The findings of the trial court is that the 1 st
accused kicked the deceased on sudden provocation, but with the knowledge that it would have caused his death. Accordingly, the trial court held the 1 st accused guilty of the offence punishable under Section 304 Part ll of the IPC. Accused Nos.2 and 3 fisted and stamped the deceased for which they were found guilty of the offence punishable under Section 323 of the IPC.
5. Heard learned counsel for the appellants and the learned Public Prosecutors.
6. Evidence of PWs 1 and 2 is essentially relied on by
the prosecution to prove the incident. They were together with the deceased at the time of occurrence. PW7 is the lift operator in Luzia Hotel, who gave evidence regarding the push and pull that occurred on the stair case in the hotel
and sustenance of injury by the deceased while by on the stair case. PW5, a Waiter in the bar of that hotel, deposed regarding the presence of the deceased, PWs 1 and 2 and also the appellants at the place of occurrence during the relevant time. He, however, did not support the prosecution in other respects. A few contradictions contained in the evidence of the occurrence witnesses were brought to my notice. After detailed analysis, the trial court, found that those contradictions are not serious enough to discredit their veracity. Having heard the learned counsel for the appellant and also the learned Public Prosecutors, I find no reason to take a different view.
7. The deceased had the following antemortem injuries: “1. Contusion 4.5 x 2x0.5 cm involving whole of right upper eye lid. Right eye showed subconjunctival hemorrhage.
2. Lacerated wound 3.5 xx0.5 cm bone deep oblique on the
right side of head, the front lower end 8 cm behind the level of top of ear. The middle part of upper border of the wound showed an abrasion 2.5 x 2 cm. The scalp tissue around was contused ( 5 x 4 cm full thickness)
3. Contusion 5 x 4 x 0.2 cm on the back of head and to the right side, overlying the occiput.
4. Contusion 5 x 4 x 0.5 cm on the right side of head
involving the temporal is muscle just above the ear. On dissection skull was intact, Brain (1300 gm) showed diffuse thin film of subarchnoid haemorrhage thick subdural haemorrhage (70gm) over the right temporal lobe which showed features of compression and contusion (5x4x.5 cm) under the clot; under surface of right frontal lobe; showed contusion (10 x 4 x 0.3 cm)
5. Contusion 3 x 1.5 x 0.5 cm on the top of left shoulder, 5
cm inner to its tip.” The opinion of PW4, the doctor who held autopsy is that Sri.Mansingh died due to head injury. When it is proved that as a result of the 1 st accused pushing him down, he sustained head injury and that led to his death, this finding can only be that the death was a homicide.
8. It is evident that the accused had no prior
acquaintance with the deceased. As a result of the abuse by the deceased, the accused got provocated and attacked the deceased. From the evidence on record, the finding of the trial court that the attack was on such a provocation, but with the knowledge that their act would have resulted in the death of the deceased can be said to be correct. In such circumstances, I am of the view that the findings rendered by the trial court leading to the conviction of accused Nos.1 to 3 are not liable to be interfered. Hence
the conviction of the accused Nos.1 to 3 is confirmed.
9. The 1st accused was sentenced to undergo simple
imprisonment for a period of 5 years and to pay a fine of Rs.1,00,000/-. Considering the gravity of the offence, I find no impropriety to the said sentence. Accused Nos.2 and 3 were convicted for the offences under Section 323 of the IPC. Considering their role in the assault on the deceased, I am of the opinion that imposition of fine for the offence under Section 323 of the IPC is sufficient. Sentence imposed on accused Nos.2 and 3 is therefore modified. They are sentenced to undergo imprisonment till the rise of the court and to pay compensation of Rs.10,000/- each. In the event of realization of the fine and compensation, the same shall be paid to the legal heirs of the deceased equally. Crl.Appeal No.486 of 2012 is dismissed. Crl.Appeal Nos.579 and 598 of 2012 are allowed to the above extent. Sd/- P.G. AJITHKUMAR JUDGE SSK/29/05