IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 CRL.A.No. 21 of 2006(C) ----------------------- SC.1200/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP.130/2004 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT: APPELLENT ----------------------- VINOD, S/O.RAMACHANDRAN., C.NO.9983, CENTRAL PRISION, TRIVANDRUM 695012. BY ADV. SRI.V.B.PREMACHANDRAN(STATE BRIEF) RESPONDENT: RESPONDENT ------------------------- THE STATE OF KERALA., REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR MR.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. No.21 of 2006 ------------------------------------------------------------------ Dated 15th December 2009 Judgment Balakrishnan Nair, J. The appellant was the accused in Sessions Court No.1200/04 on the file of the Court of Additional District and Sessions Judge (Ad hoc) II, Kollam. He stood charge sheeted by the Circle Inspector of Police, Punalur, for the offence punishable under S.302 IPC. The Trial Court found him guilty and sentenced him to undergo imprisonment for life. 2. The case of the Prosecution, in brief, is as follows : The deceased Mani was the step father of the appellant, who was born in the first marriage of his mother, PW2. In the second marriage, three daughters were born to them. They were Bindu, Mini and Ambily. Bindu was married to Mujeeb. Ambily was given in marriage and Mini deserted her parents and her whereabouts were not known. Mujeeb and Bindu used to stay in the house of the deceased, where he was staying with his wife Yasoda (PW2), the mother of the appellant. The deceased Mani did not like Mujeeb, staying in his house. According to the Prosecution, the appellant and CR. A.No.21/06 2 his mother Yasoda were supporting Mujeeb. This led to frequent quarrels between the deceased and his wife Yasoda. On 07.08.2003, the deceased Mani and Yasoda went to the house of the appellant. The deceased picked up a quarrel with his wife and the appellant regarding the staying of Mujeeb in their house. The deceased slapped on the face of Yasoda and she cried out. The appellant intervened and warned the deceased, not to repeat beating his mother. Thereafter, the couple went out from the house of the appellant and within a short time, the appellant heard his mother crying. He immediately, armed with MO1 knife, went towards the couple. There was an altercation between him and the deceased, followed by a fight and finally, it led to the appellant stabbing the deceased thrice on his chest. Mani, the injured walked for some distance from the scene of stabbing and then fell down. He soon breathed his last. People residing in the neighbourhood came to the scene. It was PW7, who first came to the scene of occurrence, to whom the deceased stated that it was the appellant, who stabbed him. Soon thereafter, PW8 and others came there. PW1 laid Ext.P1 F.I. statement before the local Police Station, which was recorded by PW26, the Sub Inspector of Police, who registered Ext.P1(a) F.I.R. CR. A.No.21/06 3 PW27 Circle Inspector of Police took over the investigation. He prepared the inquest report, drew up two scene mahazars, one relating to the place, where the deceased was stabbed and the other, where his body was found. He arranged for autopsy of the body and completed the routine formalities regarding the investigation. He arrested the accused on 08.08.2003, recorded his confession and based on the disclosure made in the confession, recovered MO1 knife from a nearby water channel. He seized the dress worn by the accused at the time of occurrence, which he had kept in his house, in the presence of witnesses. The clothes worn by the accused and other material objects recovered from the scene, were sent for scientific analysis, to the Forensic Science Lab. He questioned all the relevant witnesses. Bindu, the wife of Mujeeb was, at the relevant time, in Gujarat. When she came back, she was also questioned and her statement was recorded. He completed major part of the investigation. PW28, the successor CI of Police verified the charge and filed the final report before the Judicial First Class Magistrate's Court-III, Punalur. The learned Magistrate, after completing the due formalities, committed the case for trial by the Sessions Court, as the offence disclosed was exclusively triable by a CR. A.No.21/06 4 Court of Sessions. The learned Sessions Judge made over the case to the Additional District and Sessions Judge (Ad hoc) II, Kollam. The accused pleaded not guilty to the charge framed against him. The Prosecution, to prove its case, examined PWs 1 to 28 and marked Exts.P1 to P14. MOs 1 to 9 were also got identified and marked. While questioned under S.313 Cr.P.C., the appellant denied all the circumstances, which were brought out in evidence against him and claimed that he is innocent. The learned Additional District and Sessions Judge, after hearing both sides, found the appellant guilty and sentenced him as mentioned earlier. 3. The appellant attacks the conviction and sentence imposed on him by the Judgment under appeal on several grounds. According to him, there is no direct evidence to the effect that it was he, who inflicted the fatal injuries. The depositions of the witnesses are full of contradictions and inconsistencies. Therefore, they cannot be made the basis for his conviction. It was also pointed out that the accused wanted to save his mother, who was being badly beaten up by the deceased. Even assuming the case of the Prosecution is correct, there was an altercation and fight, preceding the stabbing. Therefore, it must be taken that he was exercising his right of private defence, to CR. A.No.21/06 5 save his mother from the imminent harm. At any rate, his action is covered by the 4th exception under S.300 IPC and in any view of the matter, he is liable to be punished, only under S.304 IPC, it is submitted. 4. The learned Public Prosecutor, on the other hand, submitted that though PW3, who was to speak regarding the stabbing, turned hostile, the materials on record, read along with the evidence of PWs 1, 2, 7, 9 and 15 would clearly establish that it was the accused, who inflicted the fatal injuries on the deceased. These witnesses narrated the incident to the extent, they have witnessed the same. Their depositions, when taken together, would show that the accused went to the place, where the deceased and PW2 were standing. Thereafter, the cries of the deceased were heard. After some time, the deceased was found lying dead. PW7 has stated that he came to the scene before the injured fell down unconscious and he told PW7 that it was the appellant, who inflicted the stab injury on him. PW15, the wife of the appellant would swear that after attacking his step father, the appellant came to his house with blood stains on his clothes and declared that Mani will no more attack anyone. So, even if there is no witness, who has seen the actual stabbing, the CR. A.No.21/06 6 circumstances spoken to, by the above witnesses, unerringly point to the guilt of the accused. The learned Public Prosecutor also submitted that MO1 weapon was recovered at the instance of the accused and the same is spoken to by PW18, an independent witness, apart from PW27, the Investigating Officer. The clothes worn by the appellant at the time of occurrence, recovered from his house and MO1 knife contained blood stains belonging to B Group, which is the blood group of the deceased. So, these circumstances proved beyond doubt that it was the appellant, who committed the crime, it was submitted. 5. We considered the rival submissions made at the Bar. The fact that the death of Mani is homicidal, is proved beyond doubt by the evidence of PW24 and Ext.P11 postmortem certificate. PW24 has opined that that the cause of death of Mani was the stab injury sustained by him on his chest. PW1 has spoken that on the fateful day, the deceased and Yasoda came to the house of the accused, at about 8.30 pm., where there was a quarrel between Mani and Yasoda. Later, the couple returned. After a few minutes, the witness heard Yasoda, crying that she was beaten up by Mani. Immediately, the accused went towards the couple, shouting that he will kill him CR. A.No.21/06 7 today. He was carrying a knife also, with him. After some time, he heard loud cries of Mani. The accused and Yasoda came back. Later, the dead body of Mani was found. Though the said witness was cross-examined extensively, nothing was brought out to discredit his version. PW2 is Yasoda. She did not support the case of the Prosecution. 6. PW3 was the occurrence witness, who was to speak on the incident. Though, she turned hostile, she has stated that at about 8 'o clock in the night, Mani and his wife Yasoda went to the house of the accused on the fateful day. There was a quarrel between Mani and the accused. Mani and Yasoda returned and on the way, Mani beat Yasoda. Thereupon, she cried aloud. Hearing the same, the accused came to the scene and caught hold of Mani. There was a fight between them. Later, the said witness came to know that Mani was killed. Even though, her deposition does not fully support the case of the Prosecution, it substantially supports their case. PWs 4 and 5 turned hostile. PW6 has deposed as follows : At about 8-8.30 pm on 7.8.2003, Mani and his wife Yasoda went to the house of the accused. There was a quarrel between Mani and the accused, concerning the presence of Mujeeb, the husband of Bindu, who is the CR. A.No.21/06 8 elder daughter of the deceased. After the quarrel, Mani and Yasoda returned. After a few minutes, Yasoda cried out that she was being beaten. Hearing this, PW6 came out from his house. He saw the accused also coming out. Yasoda called out to accused, stating that she has been beaten. Immediately, the accused rushed to the place, where Mani was standing. There was a fight between the accused and the deceased. After some time, Mani cried out that he was stabbed and went away from the place. The witness also saw a knife, made of steel, in the hands of the accused. Later, Mani was found lying in a pool of blood in a nearby place. In the cross-examination, nothing was brought out to affect the veracity of the above version of PW6. 7. PW7 saw the injured, walking for some time and falling unconscious on the ground. Before falling down, he told PW7 that it was the accused, who stabbed him. PW15, the wife of the accused also substantially supported the case of the Prosecution. She speaks about the first quarrel in her house. She also speaks about the accused, going to the place, from where he heard the cries of his mother and later, coming back and declaring that Mani will not beat anyone any more. She also deposed that the clothes of the accused CR. A.No.21/06 9 were blood stained and he changed them. In her cross-examination, the defence has brought out that she no longer has any affection for her husband and she has entered into a second marriage also. She has also stated that she does not like the accused because he has killed his father. We find that PW15 is a rustic village witness and there is a ring of truth in her deposition. So, we find no reason to disbelieve her version, especially when the same is corroborated by the versions of other witnesses. 8. PW18 is the attester to Ext.P5 mahazar for the recovery made under S. 27 of the Evidence Act. So the case of PW27, the Investigating Officer, is corroborated by the version of the said independent witness. Though PW19 has turned hostile, as he has disowned his signature in Ext.P6 mahazar, under which the clothes worn by the accused at the time of occurrence were recovered, the recovery is proved by the Investigating Officer. We find no reason to disbelieve him. The FSL report also further fortifies the Prosecution case. As pointed out by the learned Public Prosecutor, blood belonging to B Group, which was the blood group of the deceased, was detected in the weapon MO1 as also on the dress worn by the accused at the time relevant time. CR. A.No.21/06 10 9. In view of the above materials on record, we have no doubt in our mind that it was the appellant, who inflicted the stab injuries, which caused the death of Mani. 10. Now, what remains to be examined, is the contention of the appellant that his case will not fall under S.302 and may only come under the IInd part of S.304 IPC. We find considerable force in the said submission of the appellant. The evidence on record proved beyond doubt that the accused went to Mani because the latter beat his mother and she cried aloud for help. The appellant did not go and straight away stab Mani. From the depositions of witnesses, we find that there was a fight between them and during the fight only, the stabbing took place. So, we think that the commission of the appellant will come under the 4th exception to S.300 IPC. If that be so, he is liable to be found guilty only under the first limb of S.304. In the facts and circumstances proved in this case and spoken to by the witnesses, to which we have already referred, we are inclined to hold that the offence committed by the appellant is the one falling under the first part of S.304 IPC. It is so held. In the result, the Criminal Appeal is allowed in part. The conviction of the appellant under S.302 CR. A.No.21/06 11 IPC is set aside. It is held that he is guilty of the offence punishable under S.304 Part I. He is sentenced to undergo imprisonment for 10 years and pay a fine of Rs.5,000/- (Rupees Five Thousand only), in default of which, he has to undergo simple imprisonment for six months. The direction issued by the Trial Court to grant him the benefit of set off as per law, is sustained. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta CR. A.No.21/06 12