IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 CRL.A.No. 237 of 2010(D) ----------------------- SC.219/2009 of FIFTH ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT : ACCUSED --------------------- THANKACHAN, S/O.NARAYANAN, KUDILIL VEEDU, MULAKULAM NORTH, PIRAVOM VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT : COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** Crl.Appeal No.237 of 2010 ***************************** Dated this the 19th day of March, 2010 JUDGMENT BASANT, J. Did the court below err in accepting the version of PW2 about the alleged subsequent incident that took place at Velayilppadi? ii) Did the court below err in coming to the conclusion that an offence under Section 302 I.P.C is made out even accepting the entire evidence adduced by the prosecution? These questions are raised before us by the learned counsel for the appellant Sri.P.Vijayabhanu in this appeal. 2. The appellant-Thankachan has been found guilty, convicted and sentenced under Section 302 I.P.C to undergo imprisonment for life and to pay a fine of Rs.5,000/-. In default he has been sentenced to undergo R.I for a further period of 2 months. 3. According to the prosecution, on 25.11.2007, the appellant and the deceased, who were standing in a queue in front of an outlet of the Beverages Corporation had picked up a quarrel. That quarrel was related to one Periyaswamy, who allegedly attempted to break and get into the queue. The Crl.Appeal No.237 of 2010 2 deceased had taken objections against the said Periyaswamy and a quarrel ensued. The accused had allegedly intervened to appease both of them. But in the course of such incident, bad blood was allegedly created between the appellant and the deceased. The deceased was taken away from the scene of the crime in the autorickshaw of PW2 by his friends PWs 2, 7 and 8. The deceased had purchased liquor by then. While the autorickshaw was proceeding, the deceased wanted PW2 to stop the autorickshaw at Velayilppadi. They got out of the autorickshaw. The appellant and Periyaswamy were then proceeding on a motorcycle along that road. Seeing the appellant and Periyaswamy, the deceased allegedly used abusive words. This allegedly led to the incident at Velayilppadi. The appellant allegedly beat the deceased on his face. On receiving that slap, the deceased fell down heavily on the public road. Then, the appellant allegedly caught hold of the shirt of the deceased, pulled him up menacingly, asked him if he would repeat showering of abuses and then left him. He fell. When he fell initially on receiving the slap and later when he fell when the appellant left him, his head had allegedly hit the tarred portion of the road. He had a bleeding injury also. This incident took place Crl.Appeal No.237 of 2010 3 at about 1.30 p.m on 25.11.2007. The deceased was taken to PW12 doctor, who later issued Ext.P16 certificate. It was not a wound certificate. The case was not reckoned as a medico-legal case. The alleged cause narrated to PW12 was “history of a fall”. PW2, a neighbour and the driver of the autorickshaw in which the deceased was carried to the hospital, informed PW1 who is a relative of the deceased. PW1 went to the hospital. The deceased was taken back to his house. The deceased told everyone that there is no serious problem and he will get better when his intoxication fades out. PW1 left the deceased at his house and went away. By evening when PW1 returned, PW1 saw that the condition of the deceased was going from bad to worse. He took him to PW13 doctor. PW13 later issued Ext.P12 certificate. Even there, it was not reckoned as a medico-legal case. Ext.P12 shows that it was a case with history of “accidental fall after heavy alcohol consumption”. PW13 referred him to the Medical College Hospital, Kottayam, where PW15 a Neuro Surgeon attended on him. Surgery had to be performed. The diagnosis is noted by PW15 in Ext.P13 medical certificate. The deceased succumbed to his injuries at 2.20 p.m on 28.11.2007. After the death of the deceased, PW1 went to the local police Crl.Appeal No.237 of 2010 4 station and lodged Ext.P1 F.I statement in which he made a detailed narration of the information that he had allegedly collected from PW2 as well as the deceased. That F.I statement was lodged at 6.30 p.m on 28.11.2007. On the basis of Ext.P1, PW10 registered Ext.P1(a) F.I.R. Investigation commenced. Finally, after completing the investigation, PW17 filed the final report raising the charge under Section 302 I.P.C against the appellant. 4. The learned Magistrate committed the case to the Court of Session. Before the Court of Session, the appellant denied the charge levelled against him and thereupon the prosecution examined PWs 1 to 17 and proved Exts.P1 to P18. M.O1 was also marked. 5. In the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the appellant/accused did not dispute the incident that had taken place in front of the outlet of the Beverages Corporation. But he totally denied the alleged latter incident at Velayilppadi. According to him, no such incident at all had taken place. The deceased must have suffered the injuries in an accidental fall after heavy consumption of alcohol s ome time after the first Crl.Appeal No.237 of 2010 5 incident took place in front of the Beverages Corporation. Totally false and vexatious allegations were being raised against the appellant by PW1 and others. 6. The court below on an anxious consideration of all the relevant inputs came to the conclusion that the oral evidence of PW2 about the latter incident that allegedly took place at Velayilppadi can be safely accepted. That evidence when accepted establishes the offence under Section 302 I.P.C, concluded the learned Judge. Accordingly the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. 7. Before us, the learned counsel for the appellant/accused Sri.P.Vijayabhanu and Sri.Noble Mathew, the learned Public Prosecutor, have advanced their arguments. In fact, this appeal filed in 2010 came up for hearing on an application for suspension of sentence and grant of bail to the appellant. While hearing the learned counsel for the appellant, we felt that the records must be called for immediately and the appeal itself can be disposed of. It is accordingly that we have taken up the appeal for hearing and disposal out of turn at this early stage. Crl.Appeal No.237 of 2010 6 8. An appellate judgment is and must be read as a continuation of the judgment of the trial court. The trial court has narrated in detail the oral and documentary evidence - ie. the oral evidence of PWs 1 to 17 and Exts.P1 to P18. The learned Judge has also adverted to all other relevant matters. We have been taken through the oral evidence of PWs 1 to 17, Exts.P1 to P18 and all other relevant matters including the 313 examination of the appellant. We are satisfied, in these circumstances, that it is not necessary for us to attempt a re- narration of all the oral and documentary evidence. We shall refer to the relevant evidence and circumstances specifically wherever necessary in the course of our discussions in this judgment. 9. The prosecution wanted to examine 3 eye witnesses to prove the occurrence. They are, PWs 2, 7 and 8. PWs 2 , 7 and 8 were allegedly available at the site of incident No.1, ie. in front of the outlet of the Beverages Corporation. Later all 3 of them along with the deceased had proceeded from that venue to the venue of the latter incident, ie. Velayilppadi. We need not discuss the first incident in front of the outlet of the Beverages Corporation as both sides admit and accept that incident. We have the evidence of PW2 about the first incident. We have the Crl.Appeal No.237 of 2010 7 evidence of PW7 also on that first incident. In his 313 statement and during cross examination of prosecution witnesses, the appellant also accepts the same. It is hence not necessary for us to delve deeper into the evidence about the first incident in front of the outlet of the Beverages Corporation. The prosecution case on that aspect can safely be accepted. 10. Regarding the latter incident that took place at Velayilppadi, the prosecution chose to examine PWs 2, 7 and 8. PWs 7 and 8 turned hostile to the prosecution completely on this aspect. The learned Public Prosecutor after taking the requisite leave, cross examined PWs 7 and 8 and marked Exts.P5 and P6 case diary contradictions respectively to discredit PWs 7 and 8. Their evidence does not afford any support for the case of the prosecution of what had allegedly taken place at Velayilppadi. 11. We have the oral evidence of PW2 of what had happened at Velayilppadi. He supported the case of the prosecution completely. The prosecution wants to draw support for the oral evidence of PW2 from what PW1 had stated before Court which statement is supported eminently by Ext.P1 F.I statement lodged by PW1 before PW10 on 28.11.2007 at 6.30 p.m. According to PW1, he had collected the information from Crl.Appeal No.237 of 2010 8 the deceased and from PW2. Information collected from the deceased is in the nature of a dying declaration made by the deceased to PW1. The version of PW1 supports the oral evidence of PW2 in the sense that the contents of Ext.P1 narrates what PW2 had told PW1 about the incident prior to Ext.P1. 12. The evidence of PW2 is thus the foundation on which the case of the prosecution is built. According to PW2, while he was driving his autorickshaw along with the deceased, PWs 7 and 8, the deceased had wanted him to stop the autorichshaw. He had stopped the autorickshaw. The deceased had got out of the autorickshaw. At that juncture, the appellant and Periyaswamy passed by on a motorcycle. The deceased showered abusive words on the appellant. The motorcycle was stopped and the appellant came towards the deceased. He slapped the deceased on the cheek. The deceased fell down heavily on the road. His head allegedly hit the road. The appellant did not stop there. He allegedly went to the deceased, who was lying down. He caught hold the shirt of the deceased with one hand, pulled him up and then left him. Deceased fell. On both occasions, the head of the deceased had allegedly hit the tarred portion of the road, asserts PW2. Crl.Appeal No.237 of 2010 9 13. The learned counsel for the appellant contends that this version of PW2 cannot be believed. It is inconsistent with the earlier statements made before PWs 12 and 13, which is recorded in Exts.P16 and P12. In these circumstances the evidence of PW2 deserves to be discarded in toto, argues the learned counsel for the appellant. 14. The learned Public Prosecutor contends that the contents of Exts.P12 and P16 do not destroy the testimony of PW2. On both occasions, the head of the deceased had hit the ground on account of the fall. The deceased had consumed alcohol also. In these circumstances, a benevolent statement to the doctors at a time where more serious injuries were not apprehended that the deceased has suffered the injury in a fall after consuming alcohol cannot by any stretch of imagination be held to be destructive of the version of PW2 now in court, argues the learned Public Prosecutor. The learned Public Prosecutor further submits that the version is eminently corroborated by the contents of Ext.P1 F.I statement and the statement of PW1 rendered on oath now before the court. 15. We find merit in the submissions of the learned Public Prosecutor. We are unable to accept the arguments of the Crl.Appeal No.237 of 2010 10 learned counsel for the appellant that the evidence of PW2 deserves to be thrown overboard. Notwithstanding the reluctance of PWs 1, 2, 7 or 8 to raise allegations against the appellant till they faced the reality of the death of the deceased on account of the injury suffered by him in the incident it would be imprudent to discard the evidence of PW2, we are satisfied. We are unable to find anything which must instill in us reservations, doubt or distrust against the testimony of PW2. PW2's evidence in addition to the support that it gets from the evidence of PW1 and Ext.P1 does also get support from the observations made by the Investigating Officer who prepared Ext.P2 scene mahazar, ie. PW16 as also the medical evidence tendered by PWs 12 to 15 and Exhibits P12 , P13, P16 and P17 documents proved by them. In these circumstances, we choose to concur with the court below in its conclusion that the oral evidence of PW2 can be safely believed. The challenge on the first ground raised by the learned counsel for the appellant must, in these circumstances, fail. 16. The learned counsel for the appellant then contends that in any view of the matter, the court below had erred grossly and perversely in entering a verdict of guilty, conviction and Crl.Appeal No.237 of 2010 11 sentence under Section 302 I.P.C. The court below did not carefully go through the facts and the law before coming to such a conclusion, argues the learned counsel for the appellant. 17. First of all the learned counsel for the appellant contends that it is necessary for the courts to ascertain which injury was suffered by the deceased, when and in what manner. The learned counsel for the appellant points out that in Ext.P17 postmortem certificate, the following injuries were found on the deceased. “Injuries (Ante-Mortem) “1. Sutured surgical craniotomy wound `S' shaped, 28 cm long with adherent margins on the right side of head. The front inner end 3 c.m outer to midline and 6 c.m above eye brow. On dissection the scalp showed contusion 17 X 14 X 0.5 c.m underneath. The right temporalis muscle was seen contused. Skull bone showed a linear fracture 22 c.m long obliquely placed along the right frontoparietal bone the upper front and 3 c.m above root of nose. A flap of semparo parietal bone on right side (10 X 7 cm) was seen raised by 5 burr holes and was seen replaced by stay sutures. Underneath gelfoam Crl.Appeal No.237 of 2010 12 soaked in blood seen. Dura was tense. Brain showed flattening of gyri, narrowing of sulci diffuse subdural, subarachnoid and intraventricular haemorrhages and haemorrhagic softening (4 X 3 X 2 cm) of the under aspect of right frontal lobe and left thalamic region (3 X 3 X 2 cm). 2. A suture mark with cut suture insitu was seen 8 cm behind the right ear (for retaining the suction drain). 3. Abrasion 2 X 0.5 cm on the right side of back of head 10 cm behind and 3 cm above top of ear. 4. Multiple small abrasions over an area 7 X 2 cm on the right side of top of head 13 cm above root of nose and 0.5 cm to the right of midline. 5. Contusion 8 X 5 X 0.5 cm on the front of chest in the middle, the upper end 4.5 cm below top of breast bone with two abrasions 0.5 X 0.5 cm and 0.7 X 0.5 cm placed one below the other and 0.5 cm apart at its upper part, the upper one being 6 cm below top of breast bone.” 18. The learned counsel has taken us through the evidence on oath tendered by PW14. Injury No.1 externally is a surgical Crl.Appeal No.237 of 2010 13 injury. Injury No.2 is only a suture mark. Injury Nos.3 to 5 referred above are the external injuries that were available on the person of the deceased. Injury No.5 is not crucially relevant as they are only healing contusions which have absolutely nothing to do with the cause of the death in the instant case. Injury Nos.3 and 4 are abrasions on the head. Injury No.3 is on the backside of the head, 10 c.m behind and 3 c.m above the top of the ear. Injury No.4 are multiple abrasions on the right side top of the head, 13 c.m above the root of the nose and 5 c.m to the right of the midline. PW14 in his cross examination stated that injury No.1 can only be caused by a fall with the side of the head touching forcefully on a hard surface. 19. The fatal injury is injury No.1. That injury can be caused only by a fall with the side of the head touching forcefully on a hard surface. The only injury on the side of the head is injury No.4. Injury No.3 is on the back of the head. The prosecution has a case that the injuries must have been suffered by 2 contacts with the tarred road. The first one was suffered when the deceased suffered a slap on his cheek and fell. The injury on the side of the head could have resulted only from that first fall. So far as the second fall is concerned, the evidence is Crl.Appeal No.237 of 2010 14 that the deceased had fallen down on the road and then the appellant had caught hold of the shirt, pulled him up and then left him. In all probability, the counsel argues, that that second fall could have resulted only in the injury on the backside of the head. The counsel hence argues that in any view of the matter, the second contact with the road could not have resulted in injury NO.1. We have gone through the evidence of PW14. It is seen that it was not probed before the court below as to which contact - the first or the second, with the tarred portion could have resulted in injury No.1, which is the fatal injury. In these circumstances, on the available materials, we find it easy to agree with the learned counsel for the appellant that it must be assumed that internal injury corresponding to injury No.1 must have been suffered when the deceased on receiving the slap lost his balance and fell on the tarred portion of the public road. 20. The second contact with the tarred road must have led to injury No.4. But there is no evidence to show that the internal injury corresponding to injury No.1 must have resulted from injury No.4. In these circumstances, we take the view that injury No.1 must have been the result of injury No.3 and the same must Crl.Appeal No.237 of 2010 15 have been suffered when the deceased fell hard on the road after receiving the slap on the cheek. 21. The learned counsel for the appellant contends that if this is the manner in which the fatal injury was suffered, by no stretch of imagination, can it be held that the appellant is guilty either of the offence of culpable homicide defined under Section 299 I.P.C or the offence of murder defined under Section 300 I.P.C. We are thus called upon to consider what offence can be held to be proved if we accept that the fatal injury was suffered when the deceased was slapped on the cheek by the appellant and he consequently fell on the road and his head hit the floor resulting in external injury No.3 and consequently the internal injuries described in injury No.1. 22. That the deceased had suffered injuries at the hands of the appellant is established. Those injuries had led to his death is also established. But these findings cannot lead us to the ready and instant conclusion that an offence under Section 299 I.P.C has been established. To establish an offence under Section 299 I.P.C, the prosecution must establish: i) that the death was caused by the accused by doing an act; Crl.Appeal No.237 of 2010 16 ii) such act must have been done: a) with the intention of causing death or b) with the intention of causing such bodily injury as is likely to cause death or c) with the knowledge that he is likely by such act to cause death. 23. Only if the physical act of causing the death is accompanied by one of the 3 states of mind prescribed in Section 299 I.P.C, can it be held that the offence of culpable homicide defined under Section 299 I.P.C has been committed. Only if the offence of culpable homicide under Section 299 I.P.C is established, need we go into the question whether the offence of murder under Section 300 I.P.C has been established. Culpable homicide under Section 299 I.P.C is the genus and murder under Section 300 I.P.C is the species, it is trite. 24. We shall, for the sake of arguments, assume that either of the 2 contacts may have resulted in the internal injuries which led to death though, as stated earlier, the indications suggest that the first contact - the fall after the slap on the face must have led to the internal injuries described in injury No.1. The question is whether it can safely be inferred that the Crl.Appeal No.237 of 2010 17 appellant/accused did have one of the 3 contumacious states of mind prescribed under Section 299 I.P.C. 25. No one has a case that the appellant had the intention to cause the death of the deceased. There is also no contention that the appellant had intended to cause such bodily injury as is likely to cause death. The only question canvassed by the learned Public Prosecutor is that at least when the second injury was caused, the accused must be creditted with the knowledge that by such act he is likely to cause death. The question therefore is only whether the appellant when he committed the overt act - either of the 2 overt acts, had the contumacious state of mind referred to in (iii) above - ie. whether he had the knowledge that he was likely by such act cause the death of the deceased. 26. The learned counsel for the appellant places reliance on the decision of the Supreme Court in Jani Gulab Shaikh v. The State of Maharashtra [1969 (2) UJ 598 SC] as also the decision of a Division Bench of this Court in Thomas v. State of Kerala [1991 (2) KLT 274]. To us it appears that para.11 of the decision of the Division Bench is crucial when we consider the question whether the appellant had the contumacious state of mind/knowledge contemplated in (iii) above. Crl.Appeal No.237 of 2010 18 “11: The word `likely' means probably and it is distinguished from mere “possibly”. When chances of happening are even or greater than its not happening, we may say that the thing will “probably happen”. In reaching the conclusion, the court has to place itself in the situation of the accused and then Judge whether the accused had the knowledge that by the act he was likely to cause death.” 27. It is unfortunate that a slap on the cheek led to the deceased falling and suffering injuries. Even if it were assumed that the deceased had suffered the fatal injury in the second contact of the head with the tarred road, though unfortunate, it cannot be assumed that the accused had the contumacious state of mind contemplated under clause 3. When the slap on the face was inflicted, it is idle to assume that the accused intended, knew or contemplated the possibility of the deceased losing his balance and falling on the ground leading to a forcible contact of his head with the tarred road. Equally even assuming that the fatal injury was suffered by the second contact of