Judgment:
P. Bhavadasan, J.
1. Two persons were prosecuted for the offence punishable under Section 302 r/w Section 34 IPC. They were found guilty and were convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 25,000/- each, in default of payment of which, they had to suffer rigorous imprisonment for a further period of six months. It was directed that if the fine amount was realised, the same shall be paid over to PW1, the son and the wife of the deceased, as compensation.
2. The incident which gave rise to this case, occurred on 17.10.2002, at about 6.15 pm. PW1 is the son of the deceased. On the previous day of the incident, i.e., on 16.10.2002, at about 7 pm., it is alleged that while PW1 was on his way to home from Keerithodu, the first accused threatened him and brandished a tapper's knife at him. Frightened by the same, PW1 ran home. On that day, the deceased i.e, the father of PW1 had gone to the Medical College Hospital along with his wife. The next day, when he returned from the hospital i.e., on 17.10.2002, at about 5 pm, PW1 told him about the incident which took place, on the previous day. After a while, when PW1 and the deceased were on their way to the nearby house of their relative, they happened to come across the accused persons. When the father of PW1 namely, Pathrose questioned the act of the first accused of threatening his son on the previous day, agitated and infuriated by the said conduct of the deceased, the accused are said to have slashed and stabbed Pathrose. The further allegation is that PW1 had seen the accused persons, removing toddy unauthorisedly and PW1 had made it public. That was the motive for threatening PW1 and attacking his father. The accused took to their heels, when stones were thrown at them by a cousin of PW1. Pathrose was taken to the verandah of the house of his relative and his wound was tied using a towel. PW1, along with the help of a few others, who assembled there in the meanwhile, removed Pathrose to the Government Hospital, Adimali. When they reached the hospital, the doctor, who examined Pathrose, pronounced him dead. At about 6.15 pm. on 17.10.2002, PW1 laid Ext.P1 F.I. statement before the Kanjikuzhi Police Station. The same was recorded by PW15 Sub Inspector of Police, who registered Crime No. 106/02 of Kanjikuzhi Police Station for the offence punishable under Section 302 r/w Section 34 IPC as per Ext.P11 F.I.R. PW16, at the relevant time, was functioning as the S.I. of Police, Kanjikuzhi. He was working under the Circle Inspector of Police, Thodupuzha, who was in charge of the investigation of the case on hand. As the CI of Police was not available for investigation at the relevant time, as per his directions, PW16 conducted inquest on the body of the deceased and prepared Ext.P2 inquest report. He had the body sent for autopsy. PW10, the Forensic Surgeon conducted autopsy and prepared Ext.P6 postmortem report. In the meanwhile, PW16 prepared Ext.P3 scene mahazar. He also conducted a search of the house of the first and the second accused and prepared necessary documents. On the basis of the confession statement said to have been given by the first accused, MO1 knife was recovered and on the basis of the confession statement said to have been given by the second accused, MO2 tapper's knife was also recovered.
3. In fact, as already stated, the investigation, as such was not conducted by the Circle Inspector of Police Thodupuzha, who was not available for investigation at the relevant time and as directed by the said Officer, PW16 investigated the case. It is PW17, who succeeded PW16, who completed the investigation and laid charge before Court.
4. The Judicial First Class Magistrate, Idukki, before whom the final report was laid, took cognizance of the offence. On appearance of the accused before the said Court, all the legal formalities were complied with. The said Court found that the offence was one, which was exclusively triable by a Court of Sessions and accordingly, committed the case to the District and Sessions Court, Thodupuzha. The said Court made over the case to the Additional Sessions Court, Thodupuzha for trial and disposal.
5. On appearance of the accused before the latter Court and after hearing the parties, charge was framed under Section 302 r/w Section 34 IPC. The accused pleaded not guilty to the charge so framed and claimed to be tried. Therefore, the Prosecution examined PWs 1 to 18 and had Exts.P1 to P24 marked. From the defence side, Exts.D1 and D2 were marked. After the close of the evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. The first accused stated that on the date of the incident, they were on the way to the shop of one Soman to purchase household articles and when they reached in front of the house of Pathrose, they found a group of persons standing there. They had stones and sticks with them. The first accused further stated that when Pathrose and others attacked them, they ran away and escaped from the place. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. The accused chose to adduce no evidence. On an appreciation of the materials before it, the Court below came to the conclusion that the offence has been made out and accordingly found the accused guilty and conviction and sentence as already mentioned, followed. The conviction and the sentence are assailed in this Criminal Appeal.
6. The question that arises for consideration in this appeal is whether interference of this Court is called for with the Judgment of the Court below.
7. The case of the Prosecution is that on 17.10.2002, while the deceased, along with PW1 was on their way to the house of their relative, which is quite nearby, they happened to come across the accused persons. The deceased, namely Pathrose, then asked the first accused as to why he had threatened PW1 on the previous day. The reply was given in stabs.
8. The Prosecution relied on the evidence of PWs 1, 3 and 6 to prove the incident. The Court below has found their evidence to be acceptable.
9. The fact that Pathrose died as a result of the injuries suffered by him, is a fact, which cannot be disputed. Regarding the injuries, evidence is given by PWs1, 3 and 6. The inquest report namely, Ext.P2 prepared by PW16, shows the injuries found on the body of Pathrose. Ext.P6 is the postmortem report, prepared by PW10, who conducted autopsy on the body of the deceased Pathrose. The doctor has opined that the death was due to cardio pulmonary arrest due to afflicted wounds. Two injuries found by him are of fatal nature and in the ordinary course, they are likely to cause death. It was also stated by the doctor that those injuries could be caused by weapons like MOs 1 and 2. There is sufficient evidence to come to the conclusion that the death of Pathrose was homicidal.
10. PW1 as already stated, is the son of the deceased Pathrose. He was accompanying the father on the date of incident. He had told his father about the incident which had taken place on 16.10.2002, at about 6 pm. on 17.10.2002. When the father and the son were on their way to their relative's house, they happened to come across the accused person. Then, Pathrose questioned the act of the first accused on the previous day. Then, the second accused is said to have stated 'we will do worst things to you'. Immediately thereafter, the first accused is said to have attacked Pathrose with MO1 knife. Even though Pathrose tried to ward off, he was not successful in doing so and the stab got inflicted on his chest. The second accused slashed MO2, which he had with him and caused injuries on the deceased. On being injured seriously, Pathrose sat down, covering his wounds with his hands. He was immediately removed to the verandah of a nearby house. By that time, PW3 Sebastian and PW6 Shaji came to the spot. PW1 would say that with their help, he had his father, taken to the Government Hospital, Adimali. When they reached the Government Hospital, the doctor examined Pathrose and pronounced him dead. PW1 also stated that it was on hearing the cries of the deceased that PWs 3 and 6 came to the place. PW1 furnished the FI statement to the Police. In Court, he was able to identify the accused as well as the weapons used by them.
11. The next witness, who speaks about the incident is PW3 Sebastian. The deceased was his brother-in-law. On 17.10.2002, he was unable to go for work as he was suffering from fever. By about 6 pm, he heard a commotion from the nearby road. He then, found the accused, running towards the nearby bridge. He found his brother-in- law Pathrose, sitting on the road with his hands on his chest. He was found bleeding. PW1 along with others, managed to take him to the verandah of his house. He immediately had a towel brought and tried to tie the wound of Pathrose. PW6, Shaji, who had reached there at that time, was asked to go and fetch a vehicle. Thereafter, Pathrose was removed to the Government Hospital, Adimali. The doctor, who examined him pronounced him dead. PW3 would say that the accused were using the palm trees belonging to Pathrose for tapping and as part of the arrangement, they had to give a share of the toddy collected, to Pathrose. But, they did not do so and PW1 happened to see the accused removing the toddy stealthily without giving Pathrose, his share. PW1 made it public. The said incident had annoyed the accused. He also speaks about the incident that happened on 16.10.2002. He identified the clothes worn by the deceased at the relevant time.
12. The next witness for the prosecution to speak about the incident is PW6. The deceased was the brother of his father. He would depose that the incident on 17.10.2002 occurred on the Periyar Valley Road. PW6 claims that he was on his way to a shop, when he found the second accused, waiving MO2 tapper at the deceased, causing injury on him. It was followed by a stab by the first accused. He also speaks about the reasons for the ill-will between Pathrose and the accused persons. He also says that he had come to know about the incident which took place on 16.10.2002. He would say that Parthose had suffered stab injuries and he too had helped to take him to the verandah of PW3's house.
13. It could thus be seen that a clear picture of the incident is given by PWs 1, 3 and 6. All these witnesses were subjected to lengthy cross examination. But, they stood their ground. The defence was unable to extract anything, which would create a dent in their evidence. PWs 1 and 6 have identified the weapons also. There is nothing to show that their evidence is artificial and manipulated. Of course, there are some minor discrepancies pointed out, like the sequence of events and also as to what happened after the stabbing etc. But, they are inconsequential and do not affect the core of the Prosecution case. PW1 speaks about the incident on the previous day. He informed the same to his father, who came home only the next day from the Medial College Hospital. PW1 also speaks about the tapping of toddy by the accused persons and not giving Pathrose, his share as agreed upon between them. It is significant to notice that MOs 1 and 2 were recovered on the basis of the confession statements said to have been made by the respective accused persons. True, the chemical analysis report does not show that MOs 1 and 2 contained blood, but, that does not mean that the evidence of recovery of MOs 1 and 2 is to be discarded. The recovery satisfied all the requirements of Section 27 of the Indian Evidence Act. The learned Counsel appearing for the appellants pointed out that the evidence adduced by the Prosecution shows that the second accused had also suffered injuries in the incident and Ext.P7 wound certificate would prove the same. So, it is pointed out that even assuming the case of the Prosecution is true, the accused are entitled to get the benefit of doubt. In support of his contentions, the learned Counsel for the appellants relied on the decision of the Apex Court in Shivanna v. State of Karnataka 2006 KHC 1775.
14. Regarding the contention raised by the learned Counsel for the appellants on the injuries suffered by A2, a perusal of Ext.P7 would certificate would show that the injuries found on his body were of minor nature. When one recalls the evidence of PW1, it can be seen that when Pathrose was stabbed, some of the people who gathered there, pelted stones at the accused and thereupon, they ran away. There is nothing to show that there was any scuffle between Pathrose and the accused and that Pathrose had done anything that had caused injuries to the second accused. Even though, there was an attempt to show that it was the deceased and his companions that first picked up a quarrel with the accused, who were going to the shop of one Mr. Soman, to buy household articles, the defence failed to establish the said fact. There is no reason to reject the evidence given by PWs1, 3 and 6 and the other items of evidence adduced by the Prosecution. It is therefore, clear that it was the accused persons, who had inflicted the fatal injuries on Pathrose.
15. A reading of the decision cited by the learned Counsel for the appellants in Shivanna's case (supra) would show that it was a case, where the plea of private defence was set up. In the case on hand, there is nothing to indicate that there was any overt act either from the part of the victim or PW1, which could have created an apprehension in the mind of the accused persons. It is to be noticed that PW1 and his father were unarmed. The issue is not to be determined with reference to the minor injuries caused to the accused, but with reference to the manner, in which the injuries were inflicted on the victim and the circumstances, under which they were inflicted. So, the decision cited by the learned Counsel for the appellants cannot have any application to the facts of the present case. Therefore, the acts of the accused cannot be justified under any circumstances.
16. Faced with the above situation, the learned Counsel for the appellants pointed out that by no stretch of imagination, the offence under Section 302 IPC would be attracted. It was also pointed out that the Prosecution had no case that the act, which resulted in the death of Pathrose, was a pre-determined or pre-intended act and even assuming the case of the Prosecution is true, the incident had taken place on the spur of the moment and it is very evident that it is the result of the provocation offered by the deceased and PW1. Therefore, it is contended that at worst, only the offence under Section 304 IPC alone could be attracted. Though the argument may look attractive at the first blush, it can be seen that it is without any substance whatsoever. There is nothing to show that there was any provocation from the part of the deceased or PW1 so as to create any apprehension in the minds of the accused persons. It is to be remembered that the deceased and PW1 were unarmed. There is nothing to indicate that they had done any aggressive acts against the accused persons. The injuries were inflicted on the vital parts of the body of Pathrose and they were deep and severe. As rightly noticed by the Court below, there is nothing to indicate that the accused are entitled to take the plea of private defence. In the circumstances of the case, it could not be said that since there was not any pre-meditation etc., the offence will not fall within the ambit of Section 300 IPC. At any rate, the acts of the accused persons cannot escape from the 4th clause of Section 300 IPC. One cannot omit to note that both the accused had inflicted injuries on the deceased. There is absolutely no justification for the acts committed by the accused persons. Therefore, the Court below was perfectly justified in finding the accused guilty under Section 302 r/w Section 34 IPC. The finding of the Court below does not call for any interference by this Court at all. The result is that this appeal is without any merits and it is liable to be dismissed. We do so, confirming the Judgment of the Court below.