IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 CRL.A.No. 371 of 2007() ----------------------- SC.420/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------------- ANTONY @ JOHNY, S/O.VARGHESE, ODUVELIL HOUSE, NEDUMKANDAMKARA, KALKOONTHAL VILLAGE. BY ADV. SRI.C.J.JOY SRI.K.K.VIVEKANANDAN SRI.KURIAKOSE G.THEKKEL RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, NEDUMKANDAM THROUGH ADDL. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SR. PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = Crl.Appeal No.371 of 2007 = = = = = = = = = = = = = = Dated this the 27th day of July, 2011 Judgment V.Ramkumar,J. In this appeal filed under Sec.374(2) Cr.P.C. the appellant, who was the sole accused in S.C.No.420/2006 on the file of the Addl.Sessions Court (Special Judge for NDPS Act Cases), Thodupuzha for offences punishable under Sections 324 and 302 IPC, challenges the conviction entered and the sentence passed against him. 2. The case of the prosecution can be summarised as follows: On 25.02.2004 at about 8.40 pm in front of Golden Bakery at Padinjarekkavala on the western side of the Kumali-Munnar road running north-south in Kalkoonthal village, the accused out of his previous enmity towards deceased Thomas @ Joy, then aged 30 years, and his brother PW5 (Yohannan @ Saji) intentionally stabbed the said Joy on his left thigh with MO1 knife knowing fully well that he would thereby cause the death of Joy. When PW5 the brother of Joy intervened in the matter, the accused stabbed him also with MO1 knife causing an injury on his scalp. Joy who was rushed to the Medical Trust Hospital, Nedumkandam breathed his Crl. Appeal No.371 of 2007 2 last at about 8.50 pm on the same day. The accused has thereby committed offences punishable under Sections 324 and 302 IPC. 3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.W.s 1 to 21 and got marked 18 documents as Exts.P1 to P18 and 6 material objects as MOs.1 to 6. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 5. Since this was not a case of no evidence for the prosecution, the learned Sessions Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused Crl. Appeal No.371 of 2007 3 was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support thereof. He did not adduce any defence evidence. 6. The Addl. Sessions Judge, after trial, as per judgment dated 19.01.2007 found the appellant guilty of the offences charged against him. For his conviction under Section 302 IPC, the appellant was sentenced to imprisonment for life and to pay a fine of `10,000/-(Rupees ten thousand only) and on default to pay the fine to suffer rigorous imprisonment for three months. For his conviction under Section 324 IPC, he was sentenced to rigorous imprisonment for three years. The substantive sentences were directed to run concurrently. It is the said judgment which is assailed in this appeal. 7. We heard the learned counsel appearing for the appellant and Adv.Sri.C.S.Hrithwik, the learned Public Prosecutor who defended the State. We also perused the oral and documentary evidence in the case. Crl. Appeal No.371 of 2007 4 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. Even though the prosecution examined 8 witnesses to prove the occurrence as Pws.1,2,3,5 to 8 and 20, all except PW5 turned hostile to the prosecution. PW5 is none other than the younger brother of the deceased and he too had sustained a head injury at the hands of the accused during the course of the occurrence. PW4(Shinto) is the person who gave Ext.P4 First Information Statement to the Sub Inspector of Police, Nedumkandam(PW21). He is not an occurrence witness. PW9 (Joseph Paulose) is an attestor to Ext.P8 inquest report. PW10 (Jose Joseph) is an attestor to Ext.P9 Scene Mahazar. PW11(Antony @ Monichan) who is a friend of the accused was cited by the prosecution to Crl. Appeal No.371 of 2007 5 prove that when the accused came to his house at 11.45 pm on 25.02.2004 the dress worn by the accused were blood stained and he therefore gave another dress to the accused for changing his blood stained dress. This witness also turned disloyal to the prosecution. PW12 (Devasia) is an attestor to Ext.P11 recovery mahazar as per which MO2 dhothi, MO3 shirt and MO5 lungi produced by PW11 were seized by the Investigating Officer. But this witness also turned unfriendly to the prosecution. PW13 (Reji) is an attester to Ext.P12 recovery mahazar as per which MO1 knife was seized by the Investigating officer pursuant to Ext.P12(a) confession of the accused. This witness also turned hostile to the prosecution except admitting his signature in the mahazar. PW14 (Dr.A.V.Joseph) who was the Orthopaedic Surgeon in the Medical Trust Hospital, Nedumkandam proved Ext.P13 wound certificate dated 25.02.2004 pertaining to PW5 who was examined by him at about 8.15 pm. He noted an incised wound 4 x 5 cm on the Crl. Appeal No.371 of 2007 6 scalp at the parietal region of PW5. PW15(Sasikumar) was the village officer of Kalkunthal village who proved Ext.P14 scene plan. PW16 (Gigimon) was the C.I.of Police, Kattappana holding charge of C.I. of Nedumkandam. On 26.02.2004 from 10 am to 12.30 pm, he held inquest over the dead body of the deceased and prepared Ext.P8 inquest report to which PW9 was an attester. Thereafter at 2.30 pm he inspected the scene of occurrence and prepared Ext.P9 scene mahazar under which he seized MO4 series of chappals. PW17(Ramesh Kumar) was the C.I. Of Police, Nedumkandam He conducted the investigation of the case from 04.03.2004 to 24.06.2005. On 06.3.2004 at 10 am he arrested the accused from Devaramettu. At 2.15 pm on that day he effected recovery of MO1 knife and MO6 sheath from the midst of rocks at Kallar river pursuant to Ext.P12 (a) confession made by the accused. PW18 (Biju George) was the Circle Inspector of Police, Nedumkandam. He succeeded PW17. He proved Ext.P15 Chemical Report to Crl. Appeal No.371 of 2007 7 the effect that MO1 knife was smeared with human blood. PW19 (Dr.P.Babu) who was the Associate Professor of Forensic Medicine of Medical College hospital, Kottayam conducted autopsy over the dead body of Thomas @ Joy aged 30 years on 27.2.2004 between 9 am and 10 am. Ext.P16 is the post mortem certificate proved by him. PW21(Abilash) was the S.I. of Police, Nedumkandam. He recorded Ext.P4, First Information Statement of PW4 and registered Ext.P18 FIR. 10. As mentioned earlier PW5 is the solitary witness to prove the occurrence in which his elder brother sustained the fatal injury and he himself sustained the fatal injury on the parietal region of his scalp. 11. What has been deposed by PW5 is as follows:- Sindhu, the wife of the deceased was undergoing treatment in the Bhishop Vayalill Hospital at Moolamattom. Himself and the deceased were returning to their house at Kalkoonthal after visiting Sindhu. They were Crl. Appeal No.371 of 2007 8 travelling on a motor bike. At about 8.30 pm they reached Padinjarekkavala at Nedumkandam. After parking their bike in front of Kottuparambil bakery, PW5 got into a poultry shop belonging to PW8 for buying chicken. The said shop is near Chola Hospital. Deceased Joy stood near the motor bike. At that time the accused came to the poultry shop and enquired about the price of chicken. PW5 told him that it was 32. The accused remarked that he would come back after sometime and went out of the shop. After buying chicken when PW5 got out of the shop the accused held him from behind. PW5 extricated himself from his clutches and ran towards the parked motor bike. He mounted on the motor bike and the accused came from behind. The deceased then asked the accused as to why he was abusing PW5 in filthy language. At that time the accused stabbed him on the left thigh with MO1 knife. Uttering that Johny had stabbed him, the deceased fell on the road. Thereupon PW5 grabbed at the accused who stabbed PW5 on the back of his head. PW5 then attended his brother. PW5 and PW7 then took the deceased in an autorickshaw to the Medical Trust Hospital, Nedumkandam. The doctor Crl. Appeal No.371 of 2007 9 examined the deceased and pronounced him dead. PW5 had an injury on the back of his head. PW5 saw the occurrence in the light emanating from the shop as well as the street light. Two years ago there was an altercation and scuffle between him and the accused and the enmity arising therefrom is the reason for the occurrence. Ext.P13 wound certificate of PW5, duly proved by PW14, shows an incised wound 5 x 1 x1 cms on the scalp at the parietal region of PW5, when he was examined at 8.15 pm by the Orthopaedic Surgeon of Medical Trust Hospital, Nedumkandam. The alleged cause stated to the doctor was that he was assaulted with a knife. 12. Ext.P16 is the post mortem certificate pertaining to the deceased proved by PW19. It shows that the deceased had two incised injuries one on the front of the left thigh and another on the outer aspect of left index finger and a linear abrasion on the front of the right forearm. The said doctor has opined in Ext.P16 certificate that death was due to the injury sustained to the left thigh. The said injury was having a measurement of 4.7 x 2.3 cms. Crl. Appeal No.371 of 2007 10 The Femoral artery was cut. The death was due to profuse bleeding on account of the severance of Femur artery as was clarified by the doctor during re-examination. 13. The evidence of PW5 corroborated by the medical evidence clearly shows that the accused was unprovokedly mounting an attack on PW5 resulting eventually in the deceased sustaining the penetrating injury on his left thigh consequent on his intervention in the assault of PW5 by the accused. Both PW5 and the deceased were unarmed. Hence we are not impressed by the contention of the learned counsel for the appellant that the injuries sustained by the deceased and PW5 were as a result of lawful exercise of the right of private defence by the accused who was not the aggressor. But at the same time having regard to the description of the occurrence and the manner in which the deceased sustained the injury to his left thigh, we do not think that the accused was knowingly and intentionally causing the death of the deceased so as to bring the case Crl. Appeal No.371 of 2007 11 under Section 302 IPC. No doubt, by causing an injury of that magnitude, cutting the femoral artery, the accused should be posted with the intention and knowledge so as to attribute the intention that death was likely to be caused by inflicting such an injury. Hence, certainly this is a case of culpable homicide though not amounting to murder falling under the 1st part of Section 304 IPC. We, therefore, convert the conviction of Section 302 IPC into one punishable under Section 304 Part I with regard to the overt act committed by the appellant towards the deceased. For the said conviction under Section 304 Part I, the appellant is sentenced to rigorous imprisonment for 8 years and to pay a fine of Rs.25,000/-(Rupees twenty five thousand only) and on default to pay the fine he shall suffer simple imprisonment for six months. From out of the fine amount as and when realised a sum of Rs.15000/-(Rupees fifteen thousand only) shall be paid to the legal representatives of deceased Thomas @ Joy. The conviction Crl. Appeal No.371 of 2007 12 entered and the sentence passed under Section 324 IPC is left in tact and the imprisonment thereunder shall run concurrently with the imprisonment awarded under Section 304 Part I IPC. In the result this appeal is allowed in part as above altering the conviction and modifying the sentence. Dated this the 19th day of July, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj