Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942 CRL.A.No.2035 OF 2005 AGAINST THE JUDGMENT IN SC 131/2004 DATED 07-10-2005 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I), PALAKKAD APPELLANT/ACCUSED NO.1: CHETTI @ RAJAN S/O.MALLAN,POOPPANI, CHAVADIYOOR. BY ADVS. SRI.BINU PAUL SRI.SHAJI THOMAS PORKKATTIL RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY SRI.B.JAYASURYA, SR.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.2035/2005 2
JUDGMENT
Dated this the 8th day of June 2020 The above appeal is filed by the first accused in Sessions Case No.131 of 2004 on the file of the Additional Sessions Judge, Fast Track Court-I, Palakkad. The above case is charge sheeted by the Sub Inspector of Police, Sholayoor Police Station against the appellant herein and three others alleging offence punishable under Section 302 read with Section 34 IPC (hereinafter parties are mentioned in accordance with their rank before the trial court).
2. The prosecution case is that, on 16.10.2002, at
10.30 p.m., the first accused in furtherance of his common intention with the other accused to kill deceased Rajan, beat him with a stick on his neck and head due to the enmity caused towards Rajan in beating his wife Pappa in their presence. Crl.A.No.2035/2005 3
3. To substantiate the case, prosecution examined PW1 to PW8. Exts.P1 to P10 are marked on the side of the prosecution. MO1 and MO2 are the material objects marked in this case.
4. On going through the evidence and the
documents, the trial court found that, accused Nos.2 to 4 are not guilty of the offence alleged against them. The first accused was found guilty under Section 304 Part I IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/-. In default of payment of fine, he is directed to undergo rigorous
imprisonment for one year. Aggrieved by the conviction and sentence, the first accused filed the present case.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. The learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence under Section 304 Part I IPC is made out in this case. The Crl.A.No.2035/2005 4 counsel submitted that, there is only the uncorroborated
testimony of PW2. The counsel also submitted that, the evidence of PW2 is not convincing to convict the accused under Section 304 Part I IPC. It is also submitted that, the incident happened in a spur of moment, in which the accused saw the deceased attacking his own wife in their presence. Therefore, the offence under Section 304 Part I IPC is not made out.
6. The learned Public Prosecutor submitted that, the prosecution established the case based on the evidence of PW2 and therefore, there is nothing to interfere with the
judgment of the trial court. The learned Public Prosecutor
also submitted that, from the available evidence, an offence under Section 304 Part I IPC is made out.
7. After hearing both sides, the point to be decided in this appeal is, whether an offence under Section 304 Part I IPC is made out against the first accused in this case.
8. Altogether eight witnesses were examined by the Crl.A.No.2035/2005 5
prosecution. PW1 is the father of the deceased Rajan. He submitted Ext.P1 First Information Statement. He is not an eye witness to the incident. PW2 is the wife of deceased
Rajan. She deposed that, the accused are her relatives (sons of cousins of her father). According to her, when a rogue elephant came near her house at about 6 P.M. on 16.10.2002, she went to the house of the second accused, because of fear. She and the accused persons are residing in a forest area. When the deceased husband of PW2 came to his house, PW2 was not there and therefore, he came to the house of the second accused in search of her and called her out. When she came out, the deceased beat PW2 and
asked, why she left her house without getting his permission. On hearing the sound of quarrel between herself and her husband, the accused persons came together. The second accused advised them to stop the quarrel and go to their house and pushed away the husband of PW2 from the scene. The third and fourth Crl.A.No.2035/2005 6
accused intervened in the scuffle between the second accused and her husband and separated them. While the fourth accused was returning to his house, the deceased pelted stones on him. At that time, the first accused beat her husband with a stick on the back of his neck and due to the injury sustained, he fell down to the ground. PW2 took the deceased from there to her house. They reached the house by about 12 hours in the midnight. It is the case of PW2 that, her deceased husband was having severe pain during night and when the pain increased, she went to the house of one Sivan to call him. But, Sivan was not there. When she returned to her house with the wife of Sivan, her husband was found dead. This is the evidence of PW2.
9. PW3 is a person residing near the place of
occurrence. He deposed that, he heard the cry of deceased Rajan from the scene and he intimated that fact to Selvan, brother of Rajan, who is also residing in that area. PW4 is another person residing near the scene and he also Crl.A.No.2035/2005 7 deposed that, he heard deceased Rajan crying aloud shouting that, he was being beaten. PW5 is the District Police Surgeon who conducted the post-mortem examination on the body of Rajan on 18.10.2002 and issued Ext.P2 certificate. In Ext.P2 altogether 16 injuries are noted. Injury Nos.2 to 16 are contusions and abrasions. Injury No.1 is the vital injury, which is extracted herein below:
“(1) Contused abrasion 4x1.2 cm., obliquely placed on left half of back of neck, upper right end 5.5 cm. above not of neck in midline back of neck. Underneath this external injury, there was contusion, 12x6x2 cm. with its upper right end at right half of back of head, 10 cm. beind mid-point of right pinna of ear and 4 cm. below right parietal eminence. In its left lower part the contusion involved the sub-cutaneous tissues and muscles on left half of back of neck and continued upwards and to right as scalp contusion. Sub-dural and sub- arachnoid bleeding over right occipital and temporal regions and over both cerebellar hemispheres. Brain grossly edematous.”
Crl.A.No.2035/2005 8 The doctor deposed that injury No.1 is sufficient to cause death in the ordinary course of nature. He also deposed that, injury No.1 could be caused by beating with a stick. He also deposed that, injury Nos.2 to 16 could be caused, if a person roll down in a flow because of the pain caused by him.
10. PW6 is the doctor who examined accused Nos.1
to 4 on 18.10.2002 and issued EXts.P3 to P6 certificates. There was no injury on the body of accused Nos.1 to 3. There was a small healing wound of 2.5 cm on the right leg of fourth accused. PW7 is the Sub Inspector who recorded the FI Statement of PW1 and registered Ext.P1 FIR. PW8 is the Dy.S.P. who investigated the case. He prepared Ext.P8 inquest request and seized MO1 series dress from the dead body of deceased Rajan. He prepared Ext.P9 scene
mahazar and seized MO2 sticks from there. He arrested the accused and sent them for medical examination. Ext.P10 is the plan from the scene of occurrence. PW8 is Crl.A.No.2035/2005 9 the Dy.S.P. who investigated the case.
11. This is the evidence adduced by the prosecution.
From the above evidence, it is clear that, the only eye witness to the incident is PW2, the wife and deceased. PW3 and PW4 deposed that, they heard the cry of the deceased. The definite case of the prosecution is that, the
accused attacked the deceased using a stick. The trial court acquitted accused Nos.2 to 4 observing that, accused Nos.2 to 4 were having no intention to attack the deceased. The trial court observed that, the act committed by the accused in causing death of Rajan by beating him with a stick on the back of his neck is culpable homicide not amounting to murder punishable under Section 304 Part I IPC. Hence the first accused is found guilty of the
offence under Section 304 Part I IPC. The question is whether the evidence adduced by PW2 is admissible and whether an offence under Section 304 Part II IPC is made out. There is nothing to disbelieve the version of PW2 Crl.A.No.2035/2005 10 regarding the incident. She is the wife of the deceased and the close relative of the accused. There is nothing to show that, PW2 has got any enmity towards the accused to implicate them as accused. The evidence of PW2 is corroborated with the medical evidence. The injuries
sustained by the deceased is narrated by PW5. The evidence of PW2 corroborate with the evidence of PW5. There is nothing to disbelieve the evidence of PW2 in the light of the medical evidence. Therefore, it can be safely concluded that the deceased Rajan sustained injury No.1 mentioned in Ext.P2 postmortem report because of the attack of the first accused using a stick. Then the question is what is the offence committed by the first accused. The
trial court convicted him under Section 304 IPC. Section 304 IPC reads like this : “304. Punishment for culpable homicide and not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or Crl.A.No.2035/2005 11
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
In this case, from the facts narrated by PW2, it cannot be said that, the accused committed culpable homicide not amounting to murder. It cannot also be said that the act of the accused is with the knowledge that, it is likely to cause death, but without any intention to cause death. The entire incident as narrated by PW2 will show that, the accused in this case, intervened when there was assault from the deceased towards PW2, his own wife, in front of
the accused. The admitted case is that, when PW2 was seen in the house of the second accused, her husband Crl.A.No.2035/2005 12
beat PW2. When there was quarrel between PW2 and the deceased, the accused reached the place. The second accused informed the deceased to go to his house without creating any problem. The second accused pushed the deceased by holding his shirt. At that time, the third and fourth accused intervened. When fourth accused was going to his house, the deceased pelted stones towards him. At that time, the first accused attacked the deceased with a stick. This will not amount to an offence under Section 304 IPC.
12. If Section 304 IPC is not made out what is the
offence committed by the accused is the next question. To attract an offence under Section 326 IPC, the prosecution has to establish that, the accused voluntarily caused grievous hurt by using dangerous weapons. In this case, the weapon produced by the prosecution is MO2. MO2 is seized as per Ext.P9 scene mahazar. It is not a recovery at the instance of the first accused. PW8 seized MO2 based
Crl.A.No.2035/2005 13 on Ext.P2 scene mahazar. When MO2 was shown to PW2, the only eye witness to the incident, she deposed that, it is not the weapon used by the first accused. According to her, the stick is bigger than MO1. The prosecution has not taken any steps to seize the stick by which the first accused attacked the deceased. Moreover, PW2 has not described the nature of the weapon used by the first accused in her evidence. Therefore, it is a case in which the weapon of offence is not produced and marked by the prosecution and hence, there is no evidence to show that the accused used a dangerous weapon to attack the deceased.
13. From the facts narrated by PW2, the wife of the deceased, it is clear that the first accused committed an offence under Section 325 IPC. The first accused voluntarily caused grievous hurt to the deceased. It cannot be said that, the first accused committed the offence under Section
304 Part I or Part II IPC or under Section 326 IPC. The Crl.A.No.2035/2005 14 first accused has no intention to commit murder of the deceased. The first accused has no knowledge that, by inflicting the injury, he will be liable for murder. But the first accused voluntarily caused grievous hurt to the deceased. Therefore, conviction and sentence under Section 304 Part I IPC is not made out in this case and only an offence under Section 325 IPC is made out.
14. Then the next question is, what is the sentence that is to be imposed on the accused. This is an incident happened in the year 2002. About 18 years elapsed after
the incident. The incident happened, when the accused interfered in a quarrel between the deceased and his wife. There is no case to the prosecution that, the first accused has got any other motive to attack the deceased. When the deceased assaulted his own wife in front of the
accused, the accused intervened. Thereafter, when the deceased pelted stones towards the fourth accused, the first accused assaulted the deceased. This is the Crl.A.No.2035/2005 15
circumstances in which the first accused inflicted the injury on the deceased. The accused and the deceased are relative and neighbours.
15. In the facts and circumstances of this case, I
think the sentence for six months under Section 325 IPC with a fine of Rs.10,000/- will be sufficient. The deceased and the accused are residing in a forest area and they are illiterate, poor people. Therefore, imposition of huge fine amount is also not justified. Hence, this Crl.Appeal is allowed in part with the following directions :
(i) The conviction and sentence on the appellant under Section 304 Part I IPC is set aside.
(ii) The accused convicted under Section 325 IPC
and he is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/-. In default of payment of fine, the accused will undergo simple imprisonment for six Crl.A.No.2035/2005 16 months.
(iii) Set off allowed under Section 428 Cr.P.C. Sd/- P.V.KUNHIKRISHNAN JUDGE csl