IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 CRL.A.No. 327 of 2007() ----------------------- SC.86/2006 of ADDL.SESSIONS COURT (ADHOC III), MANJERI .................... APPELLANT(S): PETITIONER ------------------------ CHAMBAN @ PETER CONVICT NO.3939, CENTRAL JAIL KANNUR BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT: RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 327 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2011 JUDGMENT Ramkumar, J. In this appeal preferred from the Central Prison, Kannur, the appellant who was the sole accused in S.C.No.86/2006 on the file of Additional Sessions Court ( Fast Track III), Manjeri challenges the conviction entered and the sentence passed against him by that court for an offence punishable under Section 302 IPC. 2 The case of the prosecution can be summarised as follows : On 19/02/2005 at about 5 p.m. for the reason that deceased Lakshmi, then aged 40 years, did not prepare food of his liking, the accused intentionally and knowingly caused her death by flogging her with MO4 cane from the banks of Kanjirappuzha river in the vicinity of the house of PW2 situated at Mathilmoola in Kurumbalangode village in Nilambur Taluk. The accused has thereby committed the offence of murder punishable under Section 302 IPC. 3. On the accused pleading not guilty to the charge framed against him by the court below for the offence of murder, the prosecution was permitted to adduce evidence in support of its case. Crl.Appeal No.327/2007 2 The prosecution altogether examined 14 witnesses as PWs 1 to 14 and got marked 19 documents as Exts.P1 to P19 and eight material objects, as MOs 1 to 8. 4. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appeared against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He stated that his wife had fallen from a rock and sustained injuries after she had consumed alcohol and he had only carried her to the banks of the river. 5. Since this case was not one of no evidence for the prosecution, the learned Additional Sessions Judge did not record an order of acquittal under Section 232 Cr.P.c. The accused was therefore called upon to enter on his defence and to adduce any evidence which might have any support thereof. Except getting marked Exts.D1 and D2 the contradictions of PW2 in Ext.P2 FI statement and Ext.D3, the case diary contradiction of PW3, the accused did not adduce any defence evidence. 6. The learned Additional Sessions Judge after trail, as per Crl.Appeal No.327/2007 3 judgment dated 26.09.2006 found the appellant guilty of the offence of murder and sentenced him to imprisonment for life and to pay a fine of Rs.10,000/- and on default to pay the fine to suffer imprisonment for two years. It is the said judgment which is assailed in this appeal by the accused. 7. We heard Advocate Sri.Sachithananda Pai, learned counsel for the appellant and Sri.C.S.Hrithwik learned Public Prosecutor, who defended the State. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? The Point 9. PW1, Muhammed Ashraf is an attestor to Ext.P1 Inquest report. MOs 1 to 3 were marked through him. PW2, Balan is a neighbour of the accused. The accused and PW2 are residing in Mathilmoola which is an Adivasi colony. PW2 proved Ext.P2 FI statement given by him to PW12 and Ext.P3 scene mahazar as well as the seizure of MO4 cane thereunder. PWs 3 to 5 ( Chakki, Saraswathy and Mathi) are neighbouring residents, who were examined as witnesses Crl.Appeal No.327/2007 4 to the occurrence. All of them supported the prosecution. PW6 (Gopalan) is an attestor to Ext.P3 scene mahazar under which MO4 cane was seized from the vicinity of the place of occurrence. PW7 (Ramadasan.N.K) is a Police Constable in the office of the Circle Inspector of Police, Vandoor. He had witnessed the seizure of MO5 shirt and MO6 lungi worn by the accused and taken into custody by the Investigating Officer under Ext.P4 mahazar. PW8 (N.Rajagopalan) was the photographer, who took MO8 series of photographs. He also proved MO 7 series of negatives. PW9 (P.Premachandran) was the Village Officer of Kurumbalangode village who proved Ext.P5 scene plan. PW10 (Dr.Sherly Vasu) is the Autopsy Surgeon who proved Ext.P6 Post Mortem certificate prepared by her. She had noted three lacerated wounds and 29 other multiple contused abrasions all over the body of the deceased. She deposed that beating with MO4 cane could produce the above injuries. She further deposed that the deceased was anemic and was afflicted with leprosy and she was poorly nourished. PW11 (Thankamani V.C.) is the Chemical Examiner who proved Exts.P7, P8 and P9 reports. As per Ext.P7 report, MO4 cane was found blood stained. Ext.P8 report pertains to MO5 shirt and MO6 lungi belonging Crl.Appeal No.327/2007 5 to the accused. While MO5 shirt was blood stained, no blood was detected on MO6 lungi. Ext.P9 report pertains to MO1 lungi, MO2 jacket and MO3 piece of lungi seized from the dead body of the deceased. While there were traces of blood on MOs 2 and 3, no blood was detected on MO1 lungi. PW12 (K.Balakrishnan) was the ASI of Wandoor police station who proved Ext.P2 FI statement given to him by PW2. He registered Ext.P2(a) FIR on that basis. PW13 (C.R.Raja Sundaran) was the Circle Inspector of Police, Wandoor who conducted the major part of the investigation. Inquest over the dead body of deceased Lakshmi was held by him between 9.30 a.m. and 12 noon on 20/02/2005 as evidenced by Ext.P1 Inquest report to which PW1 is a witness. At 1:00 p.m. on the same day, he inspected the scene of occurrence and prepared Ext.P3 scene mahazar to which PW6 is an attestor. He seized MO4 cane found lying in the vicinity of the scene of crime. He also proved Exts.D1 and D2 contradictions of PW2 and Ext.D3 case diary contradiction of PW3. On 20/02/2005 at 3 p.m. he arrested the accused who was detained in the Nilambur police station. From there he prepared Ext.P4 mahazar at 3.30 p.m. with regard to the seizure of MO5 shirt and MO6 lungi worn by the accused. PW7 is a Crl.Appeal No.327/2007 6 witness to the said mahazar. PW14 (P.B.Rajeev) was the Circle Inspector of Police who succeeded PW13. He completed the investigation by submitting the originals of Exts.P11 to P13 forwarding notes. He had produced the properties before the court as evidenced by Exts.P14 to P19 property lists. After completing the investigation, he laid the charge before the court. 10. Both the accused as well as his wife, the deceased, were the residents of Mathilmoola which is an Adivasi colony. They have four children. Going by the testimonies of PWs 3 to 5, who are the occurrence witnesses, on 19/02/2005 at about 5 p.m., the accused was seen flogging his wife Lakshmi with a cane. Even though these witnesses would say that while flogging his wife, the accused uttered that he will kill her, none of them had such a case when interrogated by the police. All of them deposed before court that the reason for flogging the deceased was on account of her unwillingness to prepare a curry which was favourate to the accused. PW5 has deposed that Lakshmi was a leprosy patient. The above fact is confirmed by Ext.P6 post mortem certificate and the testimony of PW10. All the three occurrence witnesses have deposed that Lakshmi was in the habit of getting drunk Crl.Appeal No.327/2007 7 and PW4 would say that she used to get inebriated and sustain injuries after falling down in a drunken condition. PW5 would say that Lakshmi used to get drunk and pick up quarrels. Even though these witnesses would say that it was for not preparing a curry of his liking that the accused flogged her black and blue, going by the description of MO4 cane and the manner in which the accused flogged his wife, it is not possible to say that this was a case of murder falling under Section 300 IPC. The subsequent conduct of the appellant in lying by the side of the dead body of his wife and clasping her when the police came also indicates his love and affection towards his wife and probably his feeling of remorse for the beating his wife to death. Vigorously beating a person black and blue with a cane cannot in the ordinary course of nature cause death. Even PW10, the Autopsy Surgeon has only stated that Lakshmi died on account of the multiple blunt force injuries practically all over her body. The cumulative effect of the multiple injuries appeared to the Autopsy Surgeon to have resulted in neurogenic shock. The doctor was not asked whether all or any of the injuries were sufficient in the ordinary course of nature to cause death. At best, this was one of the usual domestic bickerings between the man and wife and Crl.Appeal No.327/2007 8 the resultant beatings by the accused. The necessary intention requisite to bring the case under Section 302 IPC is wanting in this case. But at the same time, it cannot be said that the accused did not have the intention or knowledge that death was likely to be caused by such persistent beatings with a cane like MO4. 11. Even though, we are not able to endorse the conclusion reached by the court below that this is a case of murder punishable under Section 302 IPC, we are of the definite opinion that the acts attributed to the accused were of such a nature that the appellant ought to have known that those acts were likely to cause death and would amount to culpable homicide not amounting to murder punishable under the latter part of Section 304 IPC. The appellant has been in custody ever since the date of his arrest on 20/02/2005. He has been in the prison now for more than six years. We therefore, dislodge the conviction of the appellant under Section 302 IPC and alter the same to one punishable under Section 304 Part II IPC. For the conviction under Section 304 Part II IPC, we are of the view that the sentence of imprisonment already undergone by the appellant will suffice. After all, the appellant is an Adivasi having four children and probably the Crl.Appeal No.327/2007 9 occurrence took place in the a fit of fury due to the unwillingness of his wife to prepare a curry which was his favourate. There was no premeditation either. In the result, this appeal is allowed in part altering the conviction from Section 302 IPC to Section 304 Part II IPC and restricting the punishment to the sentence of imprisonment already undergone by the appellant. The sentence of fine imposed by the court below is set aside. The appellant shall be released from custody forthwith, unless his continued detention is found necessary in connection with any other case against him. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sv Crl.Appeal No.327/2007 10 V.RAMKUMAR & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 327 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2011 GIST OF THE JUDGMENT Ramkumar, J. In the result, the appeal is allowed in part altering the conviction from Section 302 IPC to Section 304 Part II IPC and restricting the punishment to the sentence of imprisonment already undergone by the appellant. The sentence of fine imposed by the court below is set aside. The appellant shall be released from custody forthwith, unless his continued detention is found necessary in connection with any other case against him. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sv. Crl.Appeal No.327/2007 11