IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 CRL.A.No. 1548 of 2005 ----------------------------------------- SC.21/2005 of SESSIONS COURT, KOTTAYAM CP.41/2004 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... APPELLANT(S): ACCUSED 1 & 2 -------------------- 1. SURENDRAN, S/O.SANKARAN, CHANAVELIL HOUSE, KANNUKETTUSSERI KARA, VAIKOM VILLAGE. 2. SARISH, S/O.SURENDRAN, CHANAVELIL HOUSE, KANNUKETTUSSERI KARA, VAIKOM VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.A.P.SUBHASH SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT: ---------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.A.No.1548 of 2005 ------------------------------ Dated this, the day 9th of September, 2009 JUDGMENT Balakrishnan Nair, J. The appellants are the accused in Sessions Case No.21 of 2004 on the files of the Sessions Judge, Kottayam. 2. The brief facts of the case are the following: There was some dispute between the deceased Mr.Paul and the appellants. The deceased has cut a few Pandanus plants standing on the boundary of the property of him and that of the appellants. According to the prosecution, the appellants have declared, they will retaliate for having cut those plants. While so, at 4.p.m. on 29.3.2004, the first accused armed with a sickle and the second accused, who was the son of the first accused, armed with a crow-bar, entered the house of Mr.Paul. At that time, the deceased was sleeping in his house. The first accused instigated him by shouting to kill the deceased. Hearing the said sound, PWs. 1, 2 and 3 (wife, son Crl.A. No.1548 of 2005 - 2 - and mother of the deceased) came to the scene. PW4, a friend of PW1, was also present. The second accused using the crow-bar struck on the head of Paul, who was sleeping. On seeing the witnesses, the accused ran away. PW2 went and told his paternal uncle about the incident. The said person along with PW1 took the injured to the Government Hospital at Vaikom. From there, he was referred to Medical College Hospital, Kottayam. He underwent treatment in the said hospital. Finally, he succumbed to the injury on 8.4.2004. 3. A crime was registered based on Ext.P1 F.I. statement given by PW3, the mother of the deceased, at 5.45 p.m., on 30.3.2004. Initially, the offences alleged were under Sections 449 and 307 read with 34 of the Indian Penal Code (for short, “the I.P.C.”). Later, the offence under Section 302 was added in the place of Section 307. On the death of the injured, the Circle Inspector of Police took over the investigation. He conducted the inquest, questioned the witnesses, some of whom were already questioned by the Sub Crl.A. No.1548 of 2005 - 3 - Inspector of Police, who registered the crime at the initial stage, completed the investigation and laid the charge before the Judicial First Class Magistrate's Court, Vaikom. The learned Magistrate committed the case for trial to the Sessions Judge, Kottayam. 4. The appellants pleaded not guilty to the charges. From the side of the prosecution, PWs. 1 to 14 were examined and Exts.P1 to P12 were marked. Material Objects, Mos. 1 to 5 were also produced. The learned Sessions Judge, after hearing both sides, convicted the appellants for the offences under Section 302 read with Section 34 of the I.P.C. They were sentenced to undergo rigorous imprisonment for three years and a fine of Rs.1000/- and in default to undergo simple imprisonment for one month for the offence under Section 449 of the I.P.C. For the offence under Section 302, they were sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each and in default to undergo simple imprisonment for one month each. Feeling aggrieved by the Crl.A. No.1548 of 2005 - 4 - conviction and sentence, the appellants have preferred this Criminal Appeal. 5. We heard the learned counsel, Sri.P.Vijayabhanu, for the appellants and Sri. Noble Mathew, learned Public Prosecutor for the State. The learned counsel for the appellants took us through the deposition of the witnesses and also the exhibits produced in this case. According to him, the prosecution has not placed the correct story before the Court. He pointed out that, when the pandanus plants were cut, the first appellant came to prevent the same. The deceased armed with a sickle, caught hold of the first appellant and dragged him to the house of the deceased. Thereafter, when he raised the sickle to attack the first appellant, the second appellant who was returning from his College rushed to the scene and pushed away the deceased. He fell down and his head struck against the door-frame of his house and thus, he suffered injury. According to the learned counsel for the appellant, the above defence case is Crl.A. No.1548 of 2005 - 5 - probabilised by the presence of three half cut pandanus trees. PW10, the doctor who conducted the post-mortem examination, has also agreed with the suggestion, that the injury found on the body of the deceased could be caused by a fall with force on the door-frame. The learned counsel also pointed out that on chemical analysis, it was found that there was no blood on MO1, crow-bar. It is evident from the deposition of PWs. 1 and 3 that there was an earlier incident of cutting the plants. At that time, the appellants only complained before the Panchayat. The learned counsel also pointed out that the version of PW.3 cannot be relied on, as she stated in her First Information Statement that it was the first appellant, who caused the injury. But, while in the box, she said it was the second appellant, who caused the injury, using MO1 crow-bar. He also pointed out that the F.I. statement was given on the next day of the incident at about 4.45 p.m. So, the evidence of PW.3 is unreliable. The evidence of PW.1 also cannot be acted upon, in view of the materials on record. Though she was present with her injured Crl.A. No.1548 of 2005 - 6 - husband, she has not given any statement before the Doctor regarding the cause of the injury or before the Sub Inspector of Police, who visited the hospital. Though she is stated to be the first witness, who saw the incident, her contemporaneous statement was not recorded. So, the present version given by her cannot be accepted or acted upon. Finally, the learned counsel submitted that there is no justification for convicting the first appellant on the ground of the alleged common intention. It is pointed out that, though the deceased was found sleeping, even believing the case of the prosecution, the second appellant alone struck one blow and immediately they went away. If, both of them shared the intention to murder him, they would have caused multiple injuries by attacking him using the weapons in their hand. So, the above fact would indicate that the first appellant did not share the intention to murder and at any rate, he is entitled to get the benefit of doubt, it is submitted. 6. The learned Public Prosecutor, on the other Crl.A. No.1548 of 2005 - 7 - hand, pointed out that the first appellant, father, shouted to kill the deceased and has thus instigated the second appellant to strike the deadly blow on the head. The injury caused thereby was sufficient in the ordinary course to cause death. So, the learned Sessions Judge has rightly convicted the first appellant also for the offence under Section 302 of the I.P.C. 7. We considered the rival submissions made at the Bar and went through the evidence and materials on record. Before referring to the contentions, we will briefly refer the deposition of the occurrence witnesses. PW.1 submitted that PW.2, her son, was in the husband's family house for a few days. On 29.3.2004, she went to bring him back. While she was returning along with her son, her mother-in-law also joined them expressing her desire to see her son. When she went to bring PW2, her husband was sleeping, after taking lunch. When three of them reached the house, she heard the first accused shouting to “strike and kill him”. She heard this voice from her house and on rushing to the scene, she found Crl.A. No.1548 of 2005 - 8 - the second appellant using a crow-bar in his hand to strike at the head of her husband. She saw that her husband at that time was sleeping. When the witnesses and others entered the room, the accused immediately went away. The first accused was carrying a sickle and the second accused was having the crow-bar. Her husband was found lying in a pool of blood. They cried aloud. PW1 immediately sent PW.2 to tell Mr.Sibi, the younger brother of the injured, about the incident. After half an hour Mr.Siby and Sony, the brothers of the injured, came and took her husband in an auto rickshaw to the hospital at Vaikom. From there, he was referred to the Medical College Hospital, Kottayam. Her husband died, while undergoing treatment there. She has deposed that three pandanus trees standing by the side of the boundary of their property with the appellants were cut by her husband. Two-three days before the incident, he cut another three plants standing by the side of their house on the boundary. Her husband told her that the first appellant has declared openly that he will chop off the hands of the persons, who cut the plants. Thus, the motive Crl.A. No.1548 of 2005 - 9 - for the commission of the offence was the dispute regarding the cutting of the plants. She identified the appellants and also MO1 crowbar and MO2 sickle. She was subjected to extensive cross-examination. The attempt of the defence was to show that the cutting of the plants took place immediately preceding the incident. Notwithstanding extensive cross examination by the defence, she stood by the statements made in the chief regarding the incident. 8. PW.2 is the son of PW1 and the deceased. When the incident took place, he was a nine year old student and at the time of giving evidence, he was aged only 10 years. He has deposed that when, he along with his mother (PW.1) and grand mother (PW.3) was approaching his house, he heard somebody shouting from the house to “beat and kill”. Thereupon, they rushed to the house and saw the accused coming out. The first accused was carrying a sickle and the second accused was carrying a crowbar. He saw his father lying with the injury. The injured was unconscious. As told by Crl.A. No.1548 of 2005 - 10 - his mother, he went away to call his paternal uncle. In cross examination, he stated that PWs.1 and 3 did not tell him what actually happened. He came to know of the same a few days later. PW.3 is the mother of the deceased. She has deposed before the court in tune with the deposition of PW.1. She submitted that she joined PWs.1 and 2 and went to the house of the deceased to see him. She stated that when they reached near the house of the deceased, they found two persons standing in the room. By the time they reached the courtyard, she heard the first accused shouting to 'beat and kill' her son. Immediately, the second accused struck on the head of the deceased using a crowbar. After the beating, the appellants went away. The first appellant was carrying a sickle. The injured was lying in the north – south direction., his head being pointed towards north. She stated that the second appellant standing on the western side, struck the blow on the head of the deceased. She was standing at the door step and saw it. It was she who gave the first information statement, Ext.P1. In the said statement, apart from the blow dealt with Crl.A. No.1548 of 2005 - 11 - by the second appellant on the deceased, she also mentioned about a cut made by the first appellant using the sickle in his hand. But, while in the box, she corrected herself. She stated that she has wrongly spoken about the cut inflicted by the first appellant on the deceased using the sickle. She identified MO.1 crowbar and deposed that the second appellant using the said weapon, struck the blow on the deceased. She identified MO.2 sickle, which was in the hands of the first appellant. Though she was cross examined, nothing was brought out to discredit her version regarding the material particulars of the incident. PW.4, Mary Kurian, is a friend of PW.1. She claimed that she also followed PWs. 1 to 3 to the house of PW.1 and witnessed the incident. She also submitted that the second appellant was seen attacking the injured and on seeing her and others, the appellants made their escape. In the cross examination, she admitted that when she heard the shouting of first accused to attack the injured, she was standing in the courtyard. So, the learned Sessions Judge has declined to believe her version that she actually saw the Crl.A. No.1548 of 2005 - 12 - incident. But her deposition would show that the appellants were present at the scene of occurrence during the relevant time and they went away carrying MOs.2 and 1 respectively. PW.5 is a person in the neighbourhood, who came to the scene immediately after the incident. He is an independent witness and he has spoken about the presence of PWs.1, 3 and 4 at the scene of occurrence. 9. The medical evidence on record including the depositions of PWs.6, 10 and 13 and Exts.P2 wound certificate, P6 post mortem certificate and P9 medical case record of the Medical College Hospital, Kottayam, would support the case of the prosecution that the injured died of injury No.2, described in Ext.P6 post mortem certificate. The doctor (PW.10), who conducted the post mortem examination, deposed that the said injury was sufficient in the ordinary course to cause death. From the materials on record, it is proved beyond doubt that the injured died of the head injury sustained by him, which is mentioned as injury No.2 in Ext.P6. Crl.A. No.1548 of 2005 - 13 - 10. The next point to be considered is, whether the injury was caused by the second appellant as alleged by the prosecution, or was it sustained by the deceased as a result of accidental fall when the second appellant pushed him away to save the life of the first appellant. The case of the defence, as mentioned earlier, is that Paul, the deceased, pulled the first appellant to his house armed with a sickle and when he was attempting to attack the first appellant, the second appellant rushed to the scene and pushed him away. Accidentally, he fell and his head hit on the door frame and sustained the injury. If the injury was sustained as a result of the fall, in which the head struck against the door frame, the entire body will be outside the room. But, in this case, the injured was lying inside the room, from where he was carried to the hospital. Further, the presence of blood inside the room, which is marked in Ext.P7 scene plan would also show that it was inside the room, where the body was lying with the injury and not outside. So, the said evidence regarding the position of the injured at the time of the occurrence, Crl.A. No.1548 of 2005 - 14 - corroborated by the presence of blood on the ground, would disprove the case of the defence. But, even if the case of the defence is found to be false, the same is not sufficient to convict the appellants. We have already referred to the evidence of PWs.1 to 5. PWs.1 and 3 have witnessed the incident. The presence of the appellants is also not disputed. There is no reason for the wife and the mother of the deceased to shield the real culprit and falsely implicate the appellants. So, we are inclined to believe their version regarding the incident. So, we find that, it was the second appellant, who inflicted the fatal blow on the head of the deceased, which caused his death. Having regard to the nature of the injury inflicted by him, the commission from his part will be squarely covered by the definition of murder under Section 300 of the Indian Penal Code. So, he has rightly been found guilty by the learned Sessions Judge and appropriate sentence was imposed on him. 11. The next point to be considered is regarding the validity of the conviction rendered against the first appellant. Crl.A. No.1548 of 2005 - 15 - The case of the prosecution is that he, armed with a deadly weapon – sickle, accompanied by his son, who was armed with another deadly weapon – a crowbar, entered the room where the deceased was sleeping. The first appellant instigated his son to beat and kill the deceased, by shouting the words 'beat and kill him'. The son, (second appellant), acted accordingly and struck the deadly blow, which caused the death of Paul, the husband of PW.1. So, according to the prosecution, they have gone there to kill the deceased. That is evident from the words shouted by the first appellant, it is submitted. On the other hand, the defence would point out that, there is no overt act from the part of the first appellant. They only went there to avenge the cutting of plants on the boundary by giving one blow to him. If they have the actual intention to do away with him, they would have inflicted repeated injuries, using the deadly weapons in their hands. They would not have gone away after giving one single blow, it is submitted. 12. We considered the rival submissions on the above point. We have no doubt that to avenge the cutting of Crl.A. No.1548 of 2005 - 16 - plants on the boundary, the appellants have gone there. Both of them were armed with deadly weapons. But, from the commissions that followed from the part of the accused, it cannot be inferred that the appellants were having the common intention to murder him. If they went to murder him, on finding Paul in a convenient position, sleeping, they could have inflicted multiple injuries and ensured his death. The words uttered by the first appellant, asking his son to beat and kill the deceased, are not conclusive. Even when simple fisting is done, people may shout 'I will kill you' etc. So, merely relying on the words uttered by the first appellant, it is not safe to infer that he shared the intention to murder the deceased. Those words are used to express the intense hatred and also for exhorting the persons accompanying to attack somebody. The conduct of the appellants in dealing with one blow and going away would create a doubt in the mind of a reasonable person, as to whether they intended to murder him. So, we are inclined to accept the contention of the appellants on the above point. But this finding will not in any way help the Crl.A. No.1548 of 2005 - 17 - second appellant. Even if he did not go there with the intention to commit murder, his actions will be covered by clause 'fourthly' of Section 300 of the I.P.C. But, we feel that the first appellant is entitled to get the benefit of doubt regarding his intention to commit murder. But, we feel that he has committed the offence under Section 452 of the Indian Penal Code, which reads as follows: “452. House trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house trespass, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.” 13. The materials on record would prove the ingredients of the above offence. So, we set aside the conviction of the first appellant under Sections 449 and 302 Crl.A. No.1548 of 2005 - 18 - read with Section 34 I.P.C. and convict him for the offence punishable under Section 452 of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for four years. Since he has already undergone imprisonment for more than four years, he shall be set at liberty forthwith, if his detention is not required in connection with any other case. In the result, the conviction and sentence imposed on the second appellant is confirmed, and the conviction and sentence of the first appellant is modified as above. The Criminal Appeal is disposed of as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)