Anil Kumar, C.No.3131. C.P., Tvm. Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 10TH DAY OF JANUARY 2013 20TH POUSHA 193 CRL.A.No. 2659 of 2008 (B) -------------------------- SESSIONS CASE NO.296/01 ON THE FILE OF THE ADDL. SESSIONS JUDGE - I, MAVELIKKARA. APPELLANT : ---------------- ANIL KUMAR, C.NO.3131, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT: -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTORSRI.P.R.RANJITH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

----------------------------------------------- Crl. Appeal No.2659 of 2008 ----------------------------------------------- Dated 10th January, 2013. JUDGMENT

K.T.Sankaran, J.

The first accused in Sessions Case No.296 of 2001 on the file of the Additional Sessions Court - I, Mavelikkara challenges the conviction and sentence under Section 302 of the Indian Penal Code. The court below convicted accused No.1 and imposed life imprisonment while accused Nos.2 and 3 were acquitted.

2. The prosecution case is that on 22.7.1999 at 9.45 a.m., due to previous enmity between Shani alias Mathew John (the deceased) and accused No.1, the latter committed murder of Shani by stabbing him with MO1 knife in the veranda of a shop building in Devikulangara Panchayat, Puthuppalli Village. The prosecution alleged that accused No.1 committed the offence as instigated by accused Nos.2 and 3. Shani succumbed to the injuries on 22.7.1999 at 2.50 p.m. while undergoing treatment at the Medical College Hospital, Alappuzha. Crl. Appeal No.2659 o”

2. 3. The deceased was working as a Cleaner in a lorry. He is a relative of PW8 Lalu Issac. PW1 Ani @ Aniyankunju was the driver of the lorry. On 22.7.1999, the deceased came to the tea shop of PW4 (Sadanandan) in order to see PW1 who used to take tea from that shop. It is alleged that while the deceased and PW1 were talking, accused Nos.2 and 3 came to the place on a Moped and accused No.1 came on a bicycle. The accused persons questioned the deceased as to why he manhandled accused No.1. The deceased stated that since accused No.1 had beaten him, he had retaliated and he would do it again. It is alleged that accused Nos.2 and 3 instigated accused No.1 to do away with the deceased, whereupon the first accused took MO1 knife, which was concealed in an umbrella and stabbed on the chest of the deceased. The injured was taken to the Taluk Hospital, from where, he was taken to the Medical College Hospital. Ext.P10 wound certificate issued by PW11 (Dr.Shajahan) of the Medical College Hospital, Alappuzha shows that the deceased sustained the following injury : Crl. Appeal No.2659 o”

3. "An obliquely placed penetrating incised wound of 5 x 3 cm. size just above the left costal margin just lateral to midline and was dressed." 4. PW1 reported the matter to the Police. On 22.7.1999, PW9, the Sub Inspector of Police, Kayamkulam recorded Ext.P1 F.I. statement of PW1 and registered Ext.P1(a) FIR. He prepared Ext.P2 scene mahazar and recovered MO1 knife as per Ext.P2 mahazar. The cycle and umbrella allegedly used by accused No.1 were seized as per Ext.P3 mahazar. The first accused was arrested on 22.7.1999 at 5.30 p.m. PW13, the Circle Inspector of Police, Kayamkulam conducted the investigation and his successor in office (PW12) verified the investigation and laid the charge.

5. On the side of the prosecution, PWs.1 to 14 were examined and Exts.P1 to P19 and Mos.1 to 7 were marked. On the side of the first accused, DW1 was examined.

6. Ext.P15 post mortem certificate issued by PW14 shows that the deceased died due to "stab injury abdomen involving liver". The ante mortem injury which resulted in the Crl. Appeal No.2659 o”

4. death of the deceased is described in Ext.P15 post mortem certificate as follows : "1. Sutured incised wound 4.2 cm obliquely placed on the left constal margin on the front of abdomen. Its upper inner end was sharp and pointed and was placed 3.5 cm outer to midline and 11.5 cm away from nipple on the 8' clock position. The other end was broad. The wound entered the abdominal cavity cutting the costal cartilage. The wound passed through the left lobe of liver and terminated in the soft tissues below liver. The wound was directed downwards backwards and inwards for a total minimum depth of 6 cms." 7. PWs.1, 2 and 10 are the eye witnesses. The specific case of the prosecution is that the occurrence was at 9.45 a.m. on 22.7.1999. It is also alleged by the prosecution that on the same day, early in the morning, the deceased had beaten the first accused under the impression that the first accused was one among the persons who attacked him on the previous night. The defence put forward a case that the occurrence was at 7.30 a.m. on 22.7.1999. The defence alleged that at 7.30 a.m., the first accused was intercepted by the deceased and the first accused was asked as to why he had attacked the deceased on the previous night. The first Crl. Appeal No.2659 o”

5. accused explained that he was not involved in that incident. Some other persons also intervened. A scuffle ensued in which the deceased sustained injuries. The case put forward by the defence was not accepted by the court below for various reasons. We have gone through the evidence and also the reasonings made by the court below. It is not in dispute that the deceased was taken to the Government Hospital, Kayamkulam. Ext.19 wound certificate shows that the deceased was examined by the Doctor at 10.15 a.m. It is quite improbable that the deceased, who had sustained serious injuries at 7.30 a.m. was not taken to the hospital immediately. On the other hand, the evidence in the case would clearly indicate that the occurrence took place at 9.45 a.m. DW1 was examined on the side of the accused to prove that the incident occurred at 7.30 a.m. DW1 stated that while the first accused was coming on his cycle, the deceased and PW8 pushed him down and the first accused was cruelly beaten by them. The first accused, after escaping from the clutches of the deceased and PW8, took out a knife from the shop of PW4 and wielded Crl. Appeal No.2659 o”

6. the same. The deceased caught hold of the first accused and a scuffle occurred. The deceased sustained injuries during that scuffle. DW1 also stated that the first accused was tied down by the deceased and PW8 near the shop of PW4. DW1 stated that after purchasing fish from the fish market, he saw the incident when he came to the shop of PW4. He also stated that he reached his house at 8.30 a.m. and he did not go to the place of occurrence thereafter, on that day. DW1 stated that he does not know whether any incident happened near the shop of PW4 after 8.30 a.m. The evidence of DW1 was rightly disbelieved by the court below. The theory put forward by the first accused that the incident took place at 7.30 a.m. is falsified by the other clinching evidence in the case.

8. PW1 stated in chief examination that the first accused came on a bicycle to the scene of occurrence and accused Nos.2 and 3 came on a moped. The first accused stabbed on the chest of the deceased after taking out the knife which he concealed in his umbrella. After the stabbing, the first accused abandoned the knife and left the place on his bicycle. Crl. Appeal No.2659 o”

7. In cross examination, PW1 stated that he does not know whether the deceased intercepted the first accused and caused hurt to him. PW1 volunteered and stated in evidence that he saw the deceased beating the first accused once. It was suggested to PW1 by the first accused that to escape from the clutches of the deceased, the first accused took a knife from the shop of PW4 and wielded the same. It was also suggested to PW1 that when the deceased caught hold of the first accused, the deceased sustained the injury.

9. PW2, another eye witness stated that after the occurrence, the first accused ran away after abandoning his cycle. PW2 stated that he does not know whether the knife with which the first accused stabbed the deceased was taken from the shop of PW4. PW2 denied Ext.D1(c) statement made to the Police that the accused persons murdered the deceased to wreak vengeance to the deceased consequent on the beating of the first accused by the deceased in the morning on 22.7.1999. It was suggested to PW2 by the first accused that the deceased sustained injury while the first accused attempted Crl. Appeal No.2659 o”

8. to escape from the attack made by the deceased.

10. A similar suggestion as made on behalf of the first accused to PW2 was made to PW10, the other eye witness as well. It was also suggested to PW10 that the deceased and his relatives tied down the first accused and had beaten him. In Ext.P1 F.I. statement given by PW1, he specifically stated that the first accused took out the knife, which was concealed in his waist. That case was given a go-by by all the prosecution witnesses including PW1 and they stated that the first accused had concealed the knife in his umbrella, which was taken out and used to stab the deceased.

11. It has come out in evidence that the deceased was wearing a shirt at the time of the occurrence. The Investigating Officer did not seize that shirt worn by the deceased. There is no satisfactory explanation for not seizing the shirt. As regards the seizure of the cycle used by the first accused also, there are contradictory versions. Most of the witnesses say that the first accused escaped on his bicycle after the occurrence. PW13, the Investigating Officer also said so Crl. Appeal No.2659 o”

9. and he denied the suggestion that the cycle was seized from the place of occurrence. PW4, who is the attester to Ext.P3 seizure mahazar, under which the cycle was seized, stated that the cycle was available at the time of seizure at the place of occurrence. PW9, the Sub Inspector of Police, who arrested the first accused at 5.30 p.m. on the date of occurrence stated that the first accused was using that bicycle at the time of his arrest. According to PW9, the first accused was arrested at a place 200 mts. away from the place of occurrence.

12. PW8 is a relative of the deceased. He stated that at 7 a.m. on 22.7.1999, the deceased had beaten the first accused. PW8 intervened and thereafter, the first accused left the place. PW8 is not a witness to the occurrence at 9.45 a.m. PW8 stated that while the deceased was taken to the operation theatre in the hospital, his shirt was entrusted to him. PW8 denied Ext.D2 statement made to the Police that the deceased left his native place and started staying with PW8 since a situation arose where the deceased could not continue to reside in his native place due to the pendency of several cases against Crl. Appeal No.2659 o”

10. him. Suggestions were made by the first accused to other witnesses as well that the deceased was involved in several cases and he is a regular problem maker in the area. PW8 also denied Ext.D2(b) statement made by him to the Police that he tied down the first accused and the further statement [Ext.D2 (c)] that the first accused was released by CW17.

13. On an anxious consideration of the evidence in the case, we are of the view that the court below was not justified in holding that the first accused "had a definite intention and preparation to commit the offence of murder". We are of the view that the court below was not justified in convicting the first accused under Section 302 of the Indian Penal Code.

14. The evidence available in the case would certainly indicate that the first accused stabbed the deceased with MO1 knife and the deceased died as a result of the stab injury. The case put forward by the first accused that the incident took place at 7.30 a.m. and not at 9.45 a.m. cannot be believed. The case of the first accused that he acted in self Crl. Appeal No.2659 o”

11. defence also cannot be accepted. However, we are of the view that the facts and circumstances of the case would clearly show that Exception (1) to Section 300 of the Indian Penal Code is attracted in the present case. We are fortified in arriving at this conclusion in the light of the evidence of PW1 in cross examination that the deceased had beaten the first accused at the time of occurrence. He also stated that he does not know whether the deceased intercepted the first accused and beat him.

15. Accordingly, we find that the appellant/first accused is guilty of the offence of culpable homicide not amounting to murder punishable under Section 304(1) of the Indian Penal Code.

16. The appellant/first accused was aged 18 years at the time of committing the offence. He was working as a newspaper boy. He was also working as a helper to accused No.3, an Electrician by profession. There is no case for the prosecution that the first accused was involved in any other case. He was a first offender. In the facts and circumstances of Crl. Appeal No.2659 o”

12. the case, we are of the view that a sentence of rigorous imprisonment for a period of seven years would be sufficient to meet the ends of justice. Accordingly, the Criminal Appeal is allowed in part, the conviction of the appellant under Section 302 of the Indian Penal Code is set aside and the appellant is convicted under Section 304(1) of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of seven years. The period during which the appellant was in judicial custody shall be set off under Section 428 of the Code of Criminal Procedure. A revised committal warrant shall be issued by the court below. Sd/- K.T.SANKARAN, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy)