IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 CRL.A.No. 1270 of 2004(A) ------------------------- SC.851/2000 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.136/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... APPELLANT: APPELLANT/2ND ACCUSED: ------------------------------------------- SOMASEKHARAN NAIR @ SWAMY, AGED 55 YEARS S/O. PARAMESWARAN NAIR, THALIYALIMELEPUTHEN VEEDU MUDAVAN MUGHAL WARD, THIRUMALA VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S SRA.B.RAMACHANDRAN RESPONDENTS: RESPONDENT/COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.C. SANTHOSHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2008, ALONG WITH CRA NO. 1316 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A 1270 & 1316/04 1 J.B. KOSHY & A.K. BASHEER, JJ. -------------------------------------------------------- Crl. A. Nos. 1270 & 1316 of 2004 -------------------------------------------------------- Dated this the 10th March 2008 JUDGMENT Koshy, J. These appeals are preferred by the accused in Sessions Case No 851 of 2000 on the file of the Sessions Court, Thiruvananthapuram. First accused filed Criminal Appeal No. 1316 of 2004 and second accused filed Criminal Appeal No 1270 of 2004. First accused was convicted for offence punishable under Sections 307 and 324 I.P.C and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs 10,000/- for offence under section 307 I.P.C and rigorous imprisonment for one year for offence under Section 324 I.P.C. Second accused was sentenced to undergo imprisonment for life and to pay a fine of Rs 50,000/-, rigorous imprisonment for three years and to pay a fine of Rs 10,000/- and rigorous imprisonment for one year for offence under Crl.A 1270 & 1316/04 2 sections 302, 326 and 324 I.P.C respectively and the sentences were directed to run concurrently. 2. Accused and the deceased are relatives. First accused is the nephew of second accused. Second accused is the brother in law of deceased Soman Nair. According to the prosecution, second accused constructed a shed abutting the way leading to the property of deceased Soman Nair, brother of P.W.1, and in connection with that there were disputes between the accused and the deceased. In furtherance of their common intention of causing death of Soman Nair on account of that enmity and with the knowledge that their act would cause his death, first accused hacked Soman Nair two three times with a sword at about 8.15 p.m. On 11.01.1998 and thereby inflicted serious injuries on his both shoulders and back and when he fell down on the road after sustaining the injuries the second accused stabbed on his chest near the left shoulder and on the right portion of the lower abdomen with a knife as a result of which Soman Nair breathed his last. It is also alleged that first accused cut C.W.8, brother-in-law of Soman Nair, with a sword as a result of which her left palm was severed and then he cut below the left knee of CW-7 and the second accused stabbed near the left breast and on the Crl.A 1270 & 1316/04 3 back of Rajamma, mother of the deceased and he stabbed on the right hand of CW-5 and on the back of the left shoulder of CW-6 and because of the seriousness of the injury sustained Rajamma died on 15.07.1998 after having undergone treatment at various hospitals and according to the prosecution both the accused have committed offence punishable under sections 302, 307 and 324 read with 34 I.P.C. After considering the evidence first accused was convicted for offence punishable under Sections 307 and 304 I.P.C. He was acquitted of the offence under Section 302 I.P.C. Second accused was convicted for offence under Sections 302, 326 and 324 I.P.C. He was acquitted of the offence under Section 307 I.P.C. The Sessions Court found as follows: “........ I find that the prosecution has succeeded in proving that the second accused caused the death of Soman Nair with the intention to cause his death and with the knowledge that infliction of those injuries will cause his death and he inflicted grievous hurt to Rajamma and hurt to P.W.6 with a knife which is a dangerous weapon and that the first accused hacked Soman Nair with the intention to cause his death and while attempting to cause his death with M.O.1 Soman Nair and P.W.3 sustained injuries amounting to hurt. As there was no common intention to cause the death of Soman Nair, Crl.A 1270 & 1316/04 4 Rajamma, P.W.3 and 6 Sec. 34 IPC has no application and each accused is responsible only for his individual acts. While attempting to cause the death of Soman Nair with MO.1 the first accused caused hurt to Soman Nair and PW3 and therefore his act would come within the purview of Sec. 307 and 324 IPC. The second accused caused the death of Soman Nair with the intention to cause his death and with the knowledge that infliction of the injuries consequent to which he died would cause his death and he caused grievous hurt to Rajamma and hurt to PW6 with a knife which is a dangerous weapon and thereof his acts would come within the purview of S.302, 326 and 324 IPC. Therefore, I hold that the prosecution has succeeded in proving that the first accused committed the offences punishable under Sections 307 and 324 IPC and the second accused has committed the offences punishable under Sections 302, 326 and 324 IPC and application of Sec. 34 against the accused is not established.” Defence of the accused as revealed from Section 313 statement was that the deceased Soman Nair and party tried to evict the second accused from the shed constructed near the road and Sankaran Nair and party came after intoxication and there was a sudden fight and in the fight injuries might have been caused to the deceased as well as several others. It has come out in evidence that second accused immediately after the accident went to Poojappura police station and Crl.A 1270 & 1316/04 5 the police sent him to the General Hospital along with one Gopi who came there with a complaint and Ext P3 wound certificate issued by the doctor was produced. 3. P.W.1 is the brother of the deceased. He gave Ext. P1 F.I statement. He deposed that the incident occurred at 8.15 p.m. Soman Nair died at the Medical College hospital between 9 and 9.30 p.m. On the next day, 12.1.1998 F.I statement was given at 8 a.m. F.I.R reached the court only on the next day i.e. 13.01.1998, even though police station and the court are situated nearby. There is unexplained delay in reaching the F.I.R in court on that ground alone prosecution case cannot be thrown out. Court has to examine the evidence with caution. (See: Ram Murti v. State of Haryana (AIR 1976 S.C 2455) F.I. statement though not a substantial piece of evidence it is an important piece of evidence. In the F.I statement it is stated that on 11.01.1998 when he reached the family house to meet his parents where his parents are living he heard exchange of words between Soman Nair and the second accused from the latter's house situated adjacent to the family house. He understood that it was regarding the erection of the roof by putting asbestos sheet to the shed by second accused and he asked his parents to fetch Crl.A 1270 & 1316/04 6 Soman Nair from the house of the second accused. His mother took the deceased from the house of second accused to the road and second accused went inside his house. Later second accused came outside and was talking. Sreenivasan uncle of the wife of second accused tried to pacify (he was not examined). Deceased then came on a scooter allegedly for collecting the chitty amounts. At that time first accused who is the nephew of second accused came and mother of the deceased asked him why he was supporting unwanted people. “ This shows that mother of the accused was standing on the road near the house of second accused and she questioned the first accused. Then first accused retaliated and stated that she should not say like to his people. Sreenivasan tried to settle the matter. Then second accused ran away. After ten minutes first accused came with a sword (M.O.1) and cut Soman Nair. He attempt to cut again. Then P.W.1, Sajith and Rajith (P.W.2) together caught hold of the first accused. By that time second accused came with a knife and stabbed Soman Nair. When his elder sister Shyamala (P.W.3) tried Crl.A 1270 & 1316/04 7 to prevent it she also got injuries. His father, mother, brother-in-law and other children came to rescue. He (P.W.1), Sajith, Rajith (P.W.2) etc. took away M.O.1 sword from the first accused. In the meantime second accused took a knife and stabbed Soman , father, mother, brother-in-law and Thankamani (P.W.5), mother of first accused. When people came around accused ran away. Injured were taken to the hospital. It is also stated that deceased and second accused were on inimical terms for a long time regarding the construction of shed encroaching the road. A reading of the F.I statement would show that when the deceased went to the house of second accused for questioning the construction of new asbestos sheet in the disputed shed there was a scuffle. Even though the relatives including P.W.1 took the deceased back to the house again he and his relatives went near the shed of second accused and there was a fight and injuries caused. P.W.1 in his oral evidence proved Ext. P1 and has deposed in terms of the same. According to him he saw the accused with the help of light from neighbouring houses. He also stated Sreenivasan Nair who tried to settle the matter also got cut injury by the sword. But Sreenivasan Nair was not examined. His wound certificate was also not produced. Crl.A 1270 & 1316/04 8 4. P.W.2 nephew of P.W.1 also deposed like P.W.1. He deposed that at about 7 p.m on 11.01.1998 a noicy quarrel between Soman Nair and the second accused was heard from the shed of the second accused wherein he is residing and at that time PW1 came to the family house and asked his parents to bring Soman Nair to the road from the shed of the second accused and the grandparents brought Soman Nair to the road from the house of the second accused and at that time, the second accused came on the road and made uproar there. Sreenivasan Nair reached there and separated them and when Soman Nair returned to his house, the second accused again made noicy scenes and hearing that Soman Nair returned and a quarrel between Soman Nair and the second accused was taken place and the grandparents and others took Soman Nair to the eastern side of the road and the grandmother scolded Soman Nair for making quarrel for 1½ cents of property and at that time the first accused reached there and threatened the grandmother that nobody will be spared if anything is told against his men and at that time Soman Nair caught hold of the first accused and Sreenivasan Nair separated them and thereupon the first accused ran away towards south telling that he will show everybody and some time Crl.A 1270 & 1316/04 9 thereafter he returned with a sword and hacked Soman Nair from his back and Soman Nair fell down sustaining injury on his left shoulder and his mother warded off the second cut and thereby sustained injury on her left thumb, before cutting for the third time he along with his father, brother, grandfather, PW1 and Sreenivasan Nair took possession of the sword from the first accused by force and in the meantime, the second accused stabbed Soman Nair on the right portion of his lower abdomen, right chest and on the right side of his back and when his grandmother went for the rescue of Soman Nair, the second accused kicked her back and stabbed on her back and thereafter he stabbed his grandfather and father and one stab was inflicted on Thankamony, the mother of the first accused and thereafter both accused ran towards south, that the injured were taken to the Medical College hospital and the sword, the possession of which was taken from the first accused by his father was entrusted with the nurse on duty at the casualty and Soman Nair died at about 9.15 p.m on the same day. After about six months his grandmother died on 14th July. She deposed that there was moon light and light emitting from the neighbouring houses and that MO.1 is the sword with which the first accused hacked Soman Nair and MO.2 is the Crl.A 1270 & 1316/04 10 pant which was worn by Soman Nair at the time of the incident. In cross-examination P.W.2 stated that Sreenivasan Nair got injuries when sword was taken away from first accused. He also deposed that sword was not handed over to the police on the way to Medical College hospital since the condition of Soman Nair and grandmother was critical. 5. P.W.3 is the sister of deceased Soman Nair. She deposed that she heard an uproar from the road while watching TV and thereupon her parents rushed to the road and she ran after them and at that time Soman Nair was coming out from his house and his mother asked him as to why he is making quarrel for 1½ cents of property, that Nakulan who was coming from south at that time threatened her mother by saying that he will finish off everybody if anything is telling about his family, that thereupon Soman Nair caught hold of the first accused and Sreenivasan Nair separated them, that suddenly the first accused ran towards south by saying that he will show everybody and returned with a chopper and hacked on the right shoulder of Soman Nair and Soman Nair fell on the ground due to the impact of the hacking, that she warded off the second hacking and thereby sustained injury on her left palm and Crl.A 1270 & 1316/04 11 hearing her cry her husband, children and PW1 who are on the road went for snatching away the sword from the possession of the first accused and in the meantime the third hacking fell on the leg of Sreenivasan Nair and he sustained injury, that the second accused who was watching this by raving something has suddenly stabbed on the right side of the abdomen of Soman Nair who was lying on the ground and thereafter on his chest and back and on the back of her mother after pulling back her with a kick, thereafter the second accused stabbed her father and husband and after inflicting a stabon the mother of the first accused he ran away towards south with the first accused. She also deposed that the quarrel started with the removal of asbestos sheets of the shed put encroaching the road leading to her house. According to her, removal of the sheets of the shed is only for taking material to the building site of the deceased. When she reached the place of the incident, hearing the uproar her father, husband and Sreenivasan Nair were there in the place of incident. 6. P.W.6 is the husband of P.W.4. He deposed in terms of the evidence given by P.W.1. In cross-examination he deposed that he caught hold of on the sword first and thereafter his father-in- Crl.A 1270 & 1316/04 12 law, P.W.1 and his two children joined him for snatching the sword from the first accused and to the question as to whether anybody was preventing him and his children at the time when the second accused was stabbing he answered that he was holding on the sword and to the query as to why he did not attempt to prevent the second accused from stabbing his answer was that he was interested in taking possession of the sword to avoid any further hacking on the part of the first accused and anybody else getting its possession and that the last stab was on him. P.W.5 is another occurrence witness. She is the mother of the first accused. She was declared hostile. She deposed that she is residing about 50 metres away from the house of the second accused and while on hearing an uproar from the road, she looked and she saw a quarrel and a crowd on the road and she rushed to the spot and because of darkness she could not see anything, that the relatives of Soman Nair including his parents PW1, P.Ws 3 and 6 and the children of P.Ws 3 and 6 and few youths of the area were there. She further deposed that she also happens to be among the crowd and she sustained a cut injury with a sword and when she turned back on sustaining the injury Balakrishnan Nair who was examined as P.W.6 Crl.A 1270 & 1316/04 13 was holding the sword. 7. P.W.9 who conducted post mortem on the body of Soman Nair found 5 ante mortem injuries on his body and P.W.9 deposed that his death was due to the penetrating wounds on the chest and abdomen which according to PW 9 has caused the death of Soman Nair are described as injury Nos. 1 and 2 in Ext.P5 can be caused with a single edged knife and injury No. 4 with the tip of such a knife and injury Nos. 3 and 5 can be caused with the sharp edge of a sword like M.O.1. He also deposed that the penetrating injuries, injury Nos. 1 and 2 in Ext P5 post mortem certificate, on the chest and abdomen are the cause of the death. Rajamma mother of deceased and P.W.1 died after six months. Post-mortem certificate shows the following injuries. 1. Old firm scar with suture marks 4.5 x 0.5 cm horizontally placed on the left side of back of chest, 9 cm to the left of midline and 22 cm below shoulder. Underneath the muscles of the 8th inter-coastal space showed fibrosis 4 x 1 involving its whole thickness close to the vertebrae. The scar tissue seen extending upto the thoracic vertebrae for a minimum depth of 5 cm. Spinal cord underneath softened. Crl.A 1270 & 1316/04 14 2. Old firm scar with suture marks 3.5 x 0.5 cm on the left side of chest 8 cm below armpit. The muscles underneath showed fibrosis for a depth of 3 cm. Bed sore 17 x 12 x 1 cm on the back of trunk just above the natal cleft, the edges of which were black and floor covered with granulation tissue. Commencing bed sore 4 x 3 cm on the outer aspect of right buttock. Superficial healing wound 2x1x5 cm on the right buttock, 3 cm to the right of midline and 4 cm above gluteal fold. P.W.16 who conducted post-mortem on the body of Rajamma found two ante-mortem injuries and bed sore. She also deposed that injury No. 1 described in Ext. P13 which was the injury on the spine was not directly sufficient to cause death and that injury along with infection which is its natural complication has caused the death. She further opined that injury No.2 in Ext. P13 which was the other injury found on the body of Rajamma could be the scar resulted from surgical intervention. 8. Going by the evidence of prosecution witnesses it can be seen that there was dispute with regard to the construction of shed Crl.A 1270 & 1316/04 15 by second accused on the way encroaching to the way to the house of Soman Nair and it was a long standing dispute and that on the day of the incident Soman Nair and relatives removed asbestos sheets and when that was resisted there was a scuffle in which second accused, his wife, Rejith, (P.W.2) Sajith, Sreenivasan Nair, the mother of the accused apart from deceased Soman Nair and Rajamma were injured. A close reading of the evidence would show that between 8 and 8.30 P.M incident occurred. Deceased Soman Nair and others wanted to remove the encroachment made by second accused and according to P.W.3 Soman Nair removed the asbestos sheets of the shed where second accused was living and therre was a scuffle. It cannot be stated that the attempt of the first accused was to murder Soman Nair or P.W.3. M.O.1 was not recovered on the basis of the disclosure made by first accused. It was produced by P.W 1 before police on the next day as the sword captured from first accused. According to P.W.5 it was in the house of P.W.6 when she saw it. According to P.W.1, P.W.2 and P.W.6 the sword was taken from first accused while he was attempting to cause fatal injuries after causing hurt to Soman Nair. If Sreenivasan Nair who tried to settle the matter and sustained injuries was Crl.A 1270 & 1316/04 16 examined true picture would have been revealed. He was deliberately not examined. But we have already found there was a group clash with Soman Nair and party on one side and second accused on the other regarding removal of asbestos sheets on the shed of second accused which was allegedly obstructing the way to the house of Soman Nair and family. In the group clash and sudden fight injuries were caused to both sides. The statement that after the matter was settled in a gap of ten minutes first accused came with a sword is only an embellishment as evidence of P.Ws 2, 3 and 6 shows that incident started at or near the house (shed) of the second accused and it continued till injuries were caused on both sides. Deceased Soman Nair and his mother started the incident. We are of the opinion that incident occurred in a sudden fight after removal of asbestos sheets put by second accused in his shed. From the evidence of prosecution witnesses itself it is clear that no deliberate attempt was made to murder Soman Nair by the first accused. However it has come out in evidence that first accused caused hurt to Soman Nair by using a dangerous weapon. Hence he is liable to be convicted only under Section 324 and not under Section 307. Hence conviction and sentence of first accused under Crl.A 1270 & 1316/04 17 Section 307 I.P.C is set aside and he is convicted under Section 324 I.P.C. Conviction and sentence of first accused under Section 324 I.P.C is not interfered with. Injuries caused to Soman Nair by the second accused were of grievous nature and he has exercised the right of private defence. From the evidence adduced in this case it can be presumed that the second accused who caused fatal injury was having knowledge that those are likely to cause the death though there was no intention to cause death. In such circumstances we are of the view that second accused can be convicted for the offence punishable under section 304 Part (II) instead of Section 302. Conviction entered under section 302 I.P.C is set aside and second accused is convicted for offence punishable under section 304 Part I I.P.C and is sentenced to undergo imprisonment for a period of seven years and to pay a fine of Rs 10,000/-; in default of payment of fine he has to undergo imprisonment for five months. He inflicted grievous hurt to Rajamma and P.W.3 Shyamala and hurt to P.W.6 His conviction and sentence was under Sections 326 and 324 I.P.C are confirmed. Considering the fact that second accused came with a sword and inflicted grievous injuries on Soman Nair as well as Syamala, we are Crl.A 1270 & 1316/04 18 not inclined to interfere with the conviction and sentence imposed on him under Sections 326 and 324 I.P.C. Both