IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 CRL.A.NO. 492 OF 2005(B) ---------------------------------- SC.199/2003 OF , SESSIONS COURT, THALASSERY CP.326/2002 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... APPELLANT(S): PETITIONER: ----------------------------------------- BALANKUTTY ASARI, C.NO.925, CENTRAL PRISON, KANNUR. BY ADV. ADV.ARUN VELLANCHERY(STATE BRIEF) RESPONDENT(S): RESPONDENT: ---------------------------------------------- STATE OF KERALA. PUBLIC PROSECUTOR SHRI S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = CRIMINAL APPEAL No.492 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of January, 2009 J U D G M E N T ---------------------- Thomas P.Joseph, J. Conviction of the appellant of the offence punishable under Section 302 of the Indian Penal Code (for short, “the Code”) and sentence to undergo imprisonment for life and payment of fine of Rs.10,000/- are assailed in this appeal. 2. Case is that on 24.10.2001 at about 7.30 p.m. on account of previous enmity, appellant inflicted injuries on Uthaman (hereinafter referred as “the deceased”) on the chest and back of the chest with a chisel (M.O.1) at the courtyard of the appellant at Irattukulangara. Law was set in motion by P.W.1 by giving first information (Ext.P1) regarding the incident on 24.10.2000 at about 9.15 p.m. at Koothuparamba police station. P.W.8, Sub Inspector recorded that statement and registered case for offence under Section 302 of the Code (Ext.P1(a) is the FIR). P.W.12, Circle Inspector conducted investigation and submitted final report. Prosecution examined P.Ws.1 to 12 and marked Exts. P1 to P10 and M.Os.1 to 4. Learned Additional Sessions Judge found that the appellant caused death of the deceased by inflicting injuries with M.O.1, convicted and CRL. APPEAL No.492 of 2005 -: 2 :- sentenced him as aforesaid. 3. Questions arising for a decision in this appeal are whether the appellant inflicted injuries on the deceased as alleged by the prosecution and if so, what is the offence made out. 4. P.Ws.1 and 4 along with their friend Sasi brought the deceased to the Government Hospital, Koothuparamba on the night of 24.10.2001 where he was pronounced dead. P.W.12, Circle Inspector conducted inquest on the body on 25.10.2001. Ext. P3 is the inquest report. P.W.9, Civil Surgeon, Government Hospital, Koothuparamba conducted the postmortem examination on 25.10.2001 and issued Ext.P5. Evidence of P.W.9 and Ext.P5 show that the deceased had suffered incised wounds on the chest and back side of the chest. P.W.9 opined that death was on account of shock due to haemorrhage from injury No.1 involving the Lung and that the said injury was sufficient in the ordinary course to cause death. 5. P.W.2, wife of the deceased is the only witness to prove the alleged incident. Her case is that on 24.10.2001 at about 7.00 p.m. deceased came home after the day's work. At that time appellant was showering obscene words at P.W.2 and her children. After changing dress the deceased was sitting on the Veranda of their house. P.W.2 went inside the house and came back to the Veranda CRL. APPEAL No.492 of 2005 -: 3 :- after sometime, but could not find the deceased on the Veranda. Appellant was showering obscene words at her and children then also. She went to the courtyard of the appellant as she thought that the deceased may have gone there as he also had heard the appellant abusing her and children. She saw the appellant stabbing the deceased on the chest with M.O.1. P.W.2 propped up the deceased and cried. Her children also came there. When herself and Vilasini (her daughter) were holding the deceased, appellant again stabbed the deceased with M.O.1 on the back. P.W.2 and others brought the deceased to the road near the place of occurrence. There, they met P.W.1 and others. P.W.2 told them what had happened. P.W.1 and others took the deceased to the hospital. Witnesses identified M.O.2 as the lunki which the deceased was wearing at the time of the incident. M.O.3 is the lunki used to tie the wounds of the deceased. 6. P.Ws.1 and 4 claimed that on 24.10.2001 at about 7.15 p.m. themselves and their friend, Sasi were coming along Irattakulangara road. When they reached near the place of occurrence they heard a cry. They found the deceased being carried by P.W.2 and two other ladies. P.W.2 told them that the appellant stabbed the deceased. P.W.2 fainted. P.W.s.1, 4 and Sasi took the deceased to the Government Hospital, Koothuparamba where the CRL. APPEAL No.492 of 2005 -: 4 :- medical officer after examining the deceased pronounced him dead. P.W.1 went to the Koothuparamba police station and gave information (Ext.P1) regarding the incident. In cross-examination P.W.1 stated that his house is about 1 km. away from the place of occurrence. P.W.5 is the driver of the Jeep in which the deceased was taken to the hospital. He stated that at about 8.00 p.m. on a day in the year 2001, the deceased was taken from Irattakulangara to the Government Hospital, Koothuparamba in his jeep. Later in his jeep the dead body was taken to the mortury. 7. P.W.3. is an attester in Ext.P2, mahazar for scene of occurrence prepared by P.W.12 on 25.10.2001. In Ext.P2, the scene of occurrence is described as the courtyard of the appellant. Ext. P2 states that there was blood stains on the courtyard and blood was splashed on the nearby step. P.W.6 is an attester in Ext.P3, inquest report. P.W.7, Village Officer prepared sketch for the scene of occurrence. P.W.8, Sub Inspector recorded Ext.P1 and registered the case on 24.10.2001 at 9.15 p.m. P.W.9, Civil Surgeon who conducted the postmortem examination opined that the incised wounds referred to in Ext.P5 could be caused with a weapon like M.O.1. He also stated that there was smell of toddy while opening the stomach of the deceased. P.W.10 is an attester in Ext.P6, mahazar for seizure of CRL. APPEAL No.492 of 2005 -: 5 :- M.O.1 allegedly on the information given by the appellant. He did not support the prosecution though admitted signing Ext.P6. P.W.11 is a Police Constable attached to the office of the Circle Inspector, Koothuparamba (PW12) and an attester in Ext.P7, mahazar prepared by P.W.12 for seizure of M.O.4, shirt of the appellant. P.W.11 stated so and identified M.O.4. 8. P.W.12 took up the investigation of the case on 25.10.2001. He claimed to have arrested the appellant from near Chittariparambu theatre on the morning of 25.10.2001. Ext. P8 is the arrest memo. He seized M.O.4, shirt worn by the appellant at his office on the same day as per Ext.P7. M.Os.2 and 5, lunki and shuddy found on the body of the deceased and MO3, lunki used for tying the wounds were seized as per Ext.P5. On questioning the appellant he told P.W.12 that he has kept the chisel in a room in his house and if taken there, will show the said chisel. Accordingly as led by the appellant, P.W.12 reached that room and as per Ext.P6 seized M.O.1 produced by the appellant on 25.10.2001 at 11.40 a.m. . Material objects were sent for chemical examination. Ext. P10 is the report of chemical examination where it is stated that M.Os.1 to 5 contained human blood. 9. When questioned under Section 313 of the Code of CRL. APPEAL No.492 of 2005 -: 6 :- Criminal Procedure appellant denied the various incriminating evidence against him and claimed that the deceased who was drunk fell down somewhere and sustained injuries. It is contended in the appeal memorandum that conviction of the appellant is not legal and proper and that learned Additional Sessions Judge was not correct in accepting the evidence of the prosecution witnesses. 10. It is true that so far as the incident proper is concerned, there is only the version of P.W.2. According to P.Ws.1, 2 and 4, P.W.2, her daughter and another lady had brought the deceased to the road in their attempt to take him to the hospital and from there, P.Ws.1, 4 and their friend, Sasi (cited as witness for the prosecution, but not examined) took the deceased to the Government Hospital, Koothuparamba in the jeep driven by PW5. It is also the version of P.Ws.1, 2 and 4 that P.W.2 had then told P.Ws.1 and 4 that the appellant had stabbed the deceased with a chisel. Ext. P1, first information given by P.W.1 on 24.10.2001 at about 9.15 p.m. contains such a statement. 11. Though it is the contention of the appellant that the deceased sustained injuries elsewhere in some other manner, we are unable to accept that contention. In Ext.P2, mahazar for scene of occurrence P.W.12 has stated that on 25.10.2001 he had seen blood CRL. APPEAL No.492 of 2005 -: 7 :- stains on the courtyard and that blood was seen splashed on the nearby step. Appellant has not given any explanation for that. P.W.2 stated that she could see the incident in the light of the burning lamp kept in front of the house of the appellant. Ext.P2 shows that the house of the appellant is facing southwards and the house of P.W.2 and the deceased is situated about 75 metres south-west of the courtyard of the appellant where the incident occurred. It is not as if P.W.2 could not have witnessed the incident. She stated that as the deceased was not seen on the Veranda of her house she went to the courtyard of the appellant and saw the appellant stabbing the deceased with M.O.1. She has also referred to her witnessing the second stab. Presence of blood on the courtyard and step in front of the house of the appellant and the fact that immediately after the incident P.W.2 told P.Ws.1 and 4 that the appellant had stabbed the deceased with chisel which again gets support from Ext.P1 corroborate the evidence of P.W.2 that she had seen the appellant stabbing the deceased with chisel. There is no reason to think that PW2 has falsely implicated the appellant. 12. So far as the weapon of offence is concerned, we referred to the evidence of P.W.2 that it was with M.O.1 that the appellant inflicted injuries on the deceased. Though P.W.10 who is an attester CRL. APPEAL No.492 of 2005 -: 8 :- in Ext.P6 and a neighbour of the appellant and the deceased did not support the prosecution, he admitted signing Ext.P6. Discovery of M.O.1 on the information given by the appellant is proved by the evidence of P.W.12 and Ext.P6. Though the relevant portion of the statement of the appellant contained in Ext.P6 and which led to the discovery is not separately marked in evidence, P.W.12 has deposed to the information given to him by the appellant and it states that the appellant had kept M.O.1 at the place wherefrom he later produced it and it was seized as per Ext.P6. Discovery of M.O.1 as per Ext.P6 comes squarely within the mischief of Section 27 of the Indian Evidence Act and hence the information given by the appellant and which led to the discovery of M.O.1 is relevant and admissible in evidence. Ext. P10 shows that M.O.1 was stained with human blood. This evidence also corroborates the evidence of P.W.2 that the appellant stabbed the deceased with M.O.1. 13. Another item of evidence relied on by the prosecution is seizure of M.O.4 as per Ext.P7. We have referred to the evidence of P.W.12, Circle Inspector who effected that seizure and P.W.11, Constable attached to his office who is an attester in Ext.P7. Ext. P10 shows that M.O.4 was stained with human blood. But P.W.2 did not say in her evidence that the appellant was wearing M.O.4 at the time CRL. APPEAL No.492 of 2005 -: 9 :- of incident. Hence we are not attaching much importance on M.O.4. 14. We have considered the evidence. We find no justifiable reason to discard the evidence which we have discussed above. There is sufficient and reliable evidence to show that the appellant inflicted injuries on the deceased by stabbing with M.O.1 on the relevant day, time and place. There is little reason to interfere with the finding of the learned Sessions Judge in that regard. 15. Next question is what is the offence committed by the appellant. It is contended that the deceased was an aggressor and that appellant exercised his right of self defence. 16. It is settled position of law that even if right of self defence is not specifically pleaded, accused is entitled to raise that issue if circumstances justified such a contention. Hence notwithstanding that any suggestion in that regard was made by the appellant, we are persuaded to consider that contention. That contention stems from the fact that the incident occurred on the courtyard of the appellant where the deceased had gone. In this regard we also take note of the evidence of P.W.9 that there was smell of toddy while opening the stomach of the deceased. It was suggested to P.W.2 that there was a tussle between the appellant and deceased in the course of which deceased sustained injuries. P.W.2 denied that suggestion. It was CRL. APPEAL No.492 of 2005 -: 10 :- brought out in the evidence of P.W.12 that P.W.2 had told him that there was a push and pull between the deceased and appellant in the courtyard. 17. As per the evidence of P.W.2 which we referred to earlier, appellant was showering abuses on P.W.2 and her children on the evening of 24.10.2001 and it was then that the deceased came home. That continued even after the deceased came to his house. P.W.2 stated that she went to the courtyard of the appellant as she thought that the deceased may have gone there hearing the appellant abusing P.W.2 and children. It is clear that the deceased went to the courtyard hearing the appellant abusing his wife (P.W.2) and children. We are not inclined to think that the deceased should have acted like a coward when he heard the appellant showering abuses on his wife and children. Deceased was justified in going to the courtyard of the appellant to enquire about that. Hence the mere fact that deceased had gone to the courtyard of the appellant is not sufficient to hold that he was the aggressor. On the question whether there was a push and pull between the deceased and appellant there is only the contradiction in the evidence of P.W.2 brought out through P.W.12. We notice that the contradiction in the previous statement of P.W.2 proved through P.W.12 was not separately extracted and marked. It CRL. APPEAL No.492 of 2005 -: 11 :- ought to have been done so as held by a Division Bench of this Court in Imbai v. State (1989 (1) KLT 956). We have considered the nature of injuries suffered by the deceased proved by Ext.P5. Nature of injuries do not indicate that that those injuries were caused in the course of push and pull. Deep injuries were inflicted. There is no case or evidence that the deceased was armed. Assuming that there was a push and pull, in the absence of anything to suggest that the appellant reasonably apprehended death or grievous hurt or any other situation contemplated under Section 100 of the Code at the hands of the deceased, he cannot justify his act of man slaughter. Evidence of P.W.2 shows that even after the deceased suffered the first injury, appellant again stabbed the deceased while herself and her daughter were holding the deceased. We do not find any evidence or circumstance to think that the appellant would have acted in exercise of his self defence. 18. So far as the nature of offence committed is concerned, P.W.9, Civil Surgeon was specific that injury No.1 was grievous and caused the death. We also notice from Ext.P5 that the said injury was inflicted on a vital part of the body and affected the lungs. Considering the nature of injuries, the weapon used and the manner in which those injuries were inflicted, it is only reasonable to think that CRL. APPEAL No.492 of 2005 -: 12 :- the appellant intended to cause the death or to cause such bodily injury as he knew is likely to cause the death of the deceased. 19. In the circumstances, the conviction of the appellant under Section 302 of the Code cannot be assailed. Sentence also is in accordance with the provision of law and warranted no interference. Appeal fails and is dismissed. A.K. BASHEER, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv