IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 CRL.A.No. 1441 of 2005() ------------------------ SC.43/1996 of ADDL. SESSIONS COURT-II, MAVELIKKARA .................... APPELLANT/COMPLAINANT: -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI.P.N.SUKUMARAN RESPONDENT/ACCUSED: --------------- ANIL, S/O.KALIKUTTY, MANGATTU VEEDU, ULUNTHIMURI, ENNAKKAD VILLAGE, ALAPPUZHA. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.GEORGE RAJU SMT.SURYA SASI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. No.1441 of 2005 ------------------------------------------------------------------ Dated 17th November 2009 Judgment Balakrishnan Nair, J. State is the appellant. It challenges the Judgment of the Additional Sessions Judge-II, Mavelikara in Sessions Case No.43/96. 2. According to the prosecution, on 14.04.1995 at about 4 pm., there was a quarrel between the accused and the deceased. The quarrel erupted because the deceased told the mother of the accused, regarding the misdeeds of the latter. Infuriated by the same, the accused attacked the deceased. When the deceased fell down, the accused sat on his chest and applied constrictive force at his throat. While throttling the deceased, the accused was removed by force, by the onlookers. The deceased got up, walked a few steps, pushed aside a wooden box belonging to the accused, fell down and breathed his last. According to the prosecution, the accused died of asphyxia, resulting from throttling. Cr.A.No.1441/05 2 3. The first information was lodged on the same day by PW1, the elder brother of the accused, before PW20 Assistant Sub Inspector of Police, Mannar. PW20 recorded Ext.P1 F.I. statement and registered Ext.P1(a) F.I.R. PW21 Circle Inspector of Police took over the investigation. On the next day, PW21 conducted inquest and prepared Ext.P3 inquest report. He arranged for autopsy of the deadbody at Medical College, Alappuzha. Ext.P5 scene mahazar was also prepared by PW21. He questioned the witnesses, completed the investigation and laid the charge before the Judicial First Class Magistrate's Court-II, Chengannur. The learned Magistrate committed the case for trial by the learned Sessions Judge, Alappuzha, which in turn, was made over to the Court of Additional Sessions Judge-II, Mavelikara. The accused pleaded not guilty to the charge under S.302 IPC, framed by the Trial Court. The Prosecution, to prove its case, examined PWs 1 to 21 and marked Exts.P1 to P7. MO1 under-cloth worn by the deceased at the time of death was also produced. The chemical analysis report concerning the blood of the deceased was marked as Ext.C1. The learned Additional Sessions Judge, after hearing both sides and considering Cr.A.No.1441/05 3 the evidence on record, acquitted the accused. Not only the evidence of the witnesses, but also the evidence tendered by PW9 doctor, who conducted the postmortem examination, was disbelieved by the Trial Court. On finding that the case against the accused was not proved beyond doubt, he was acquitted. The State, being aggrieved by the finding of the learned Additional Sessions Judge, has preferred this Appeal. 4. The learned Public Prosecutor took us through the deposition of the witnesses and also the relevant portions of the Judgment under appeal. He submitted that the evidence of PWs 3, 4 and 12 would clearly prove that it was the accused, who inflicted injuries on the deceased. The evidence of PW9, the doctor, who conducted autopsy and Ext.P4 postmortem certificate, would prove beyond doubt that the deceased Surendran died of throttling and there was no other cause for his death. The appreciation of evidence made by the Trial Court was perverse and there was no reason for PWs 3, 4 and 12, to spare the real culprit and falsely implicate the accused. There was no reason or justification for viewing with doubt, the opinion of PW9 doctor. Therefore, the learned Public Prosecutor prayed for reversing the Judgment of the Court below and to find the Cr.A.No.1441/05 4 respondent/accused, guilty of the offence under S.302 IPC. It was further submitted that in any view of the matter, he should be found guilty under S.304 Part II or at least under S.325 IPC. 5. We heard the learned counsel appearing for the respondent/ accused. He supported the findings of the Trial Court. Alternatively, it was stated that the incident happened as part of a clash between the accused and the deceased. The accused is a young man aged 19, whereas the deceased was a hefty man, aged 34. Therefore, whatever commissions or omissions attributed to the accused, should be taken as done in self defence. So, even assuming the case of the Prosecution is accepted, the appellant is entitled to get acquittal, it is submitted. 6. We will briefly refer to the relevant points in evidence. PW1 laid the first information, based on which the crime was registered. He has not witnessed the incident. The incident occurred in front of the house of PW12, where PW2 was residing. PW2 has deposed that there was a quarrel and later, a clash, between the accused and the deceased. She did not support the case of the Prosecution, but, according to her, it was the deceased, who attacked the accused. PW3 is the son of the deceased. He deposed before court that while Cr.A.No.1441/05 5 his father was sitting with the child of PW2 in his hand, the accused came from behind and pushed him. Thereafter, the accused sat on the chest of his father and throttled him. While so, PWs 4 and 5 came there and they, by use of force, pushed the accused away. He saw the eyes of his father protruding because of the throttling. His father stood up, moved a few steps, pushed aside a box belonging to the accused and fell down. 7. PW4, though in his chief examination, substantially supported the version of PW3, in his cross examination, he has made certain inconsistent statements. PW5 turned hostile to the Prosecution, but he also spoke about the clash between the accused and the deceased. PWs 6 to 8 are formal witnesses. PW9 is the doctor, who conducted autopsy and issued Ext.P4 postmortem certificate. He has specifically stated that blunt force was applied to the neck of the deceased and he died of asphyxia. He has also deposed that the version that after applying force at the throat, the victim stood up, walked a few steps, pushed a box aside and then only fell down, cannot be said to be inconsistent with the case that the victim died of throttling. A person, who sustains blunt force at the neck, may do such things for a few more minutes, before he is Cr.A.No.1441/05 6 completely overpowered by the effect of throttling. PW9 also ruled out the possibility of death of the victim, due to heart attack. 8. PW10 is the doctor, who examined the deceased at Mavelikara Government Hospital. He has deposed that the victim was brought there dead. PW11 is the Ayurveda doctor, who is running Abhaya Hospital in the neighbourhood. It was he, who first examined the injured and on finding his serious condition, suggested that he may be taken to some other hospital. While in the box, he has deposed that in fact, he found the injured dead, when he was brought to his hospital. PW12 has fully supported the case of the Prosecution in his chief examination. But, in the cross examination, certain inconsistencies were brought out. Apart from that, he has spoken about a clash between the deceased and the accused, in his cross examination. He also deposed that initially, they were separated and after some time, they again started fighting. Finally, they were separated by the onlookers. He also deposed that armed with pestles, both tried to attack each other. When pestles were removed from the hands of the accused, he went away and came with a chopper. That was also removed by force by PW12. Cr.A.No.1441/05 7 9. PW13 is the attester to Ext.P5 scene mahazar. PWs 14 to 16 turned hostile and they did not support the case of the Prosecution. PW17 is the autorickshaw driver, who took the injured to Abhaya Hospital. PW18 is the Police Constable, who took the deadbody of the deceased for autopsy and PW19 had done the duty of guarding the scene of occurrence. As mentioned earlier, PW20 Assistant Sub Inspector of Police registered the F.I.R. and PW21 Circle Inspector of Police completed the investigation. 10. Going by the evidence of PWs 3, 4 and 12, it is clear that initially, there was shower of abuse between the accused and the deceased. Later, they started fighting. At some stage of the fight, the accused was in an advantageous position and he was sitting on chest of the deceased and applied force at the victim's neck. The fact that there was a clash between the accused and the deceased, is proved by the deposition of the witnesses. No one has put forward a case that somebody else came there and inflicted injuries on the deceased. Ext.P4 postmortem certificate would show the injuries found on the body of the deceased. Injury Nos.1 to 4 were inflicted injuries. From the evidence on record, we have no doubt that the Cr.A.No.1441/05 8 deceased sustained injuries at the hands of the accused. The finding of the court below that the Prosecution has failed to prove its case, is perverse and we reverse that finding. The learned Sessions Judge has missed the wood for the trees, while undertaking the analysis of the evidence. Equally untenable is the analysis of evidence of PW9 and the contents of Ext.P4 postmortem certificate. The learned Sessions Judge has relied on certain texts on Medical Jurisprudence and held that the version of PW9 cannot be believed. We are of the view that the said finding is plainly unwarranted. We find no reason to discredit the opinion given by PW9 that the death was due to the blunt force applied at the neck, which caused asphyxia and that the death was not due to any other cause. So, we reverse the finding of the learned Sessions Judge, on that point also. 11. The next point to be considered is whether the accused has committed the offence under S.302 IPC. As mentioned earlier, the deposition of various witnesses would show that there was a clash between the accused and the deceased. At some stage of the fight, as the deceased was under the influence of alcohol, the accused was able to get an advantageous position and so, he sat on the chest of the deceased and applied blunt force on his neck. In fact, it can Cr.A.No.1441/05 9 definitely be claimed that the accused applied blunt force on his neck, to save himself. If he takes his hands off the neck, the deceased may have got up and continued to attack and injure him. As pointed out by the learned counsel for the accused, he was only a boy of 19 years, whereas the deceased was a hefty fellow, aged 34. So, while applying pressure at the neck, the accused cannot measure the intensity of the pressure or apply the same, counting the seconds or minutes. He was trying to overpower the deceased, so that there may not be any further attack on him. For that, he applied blunt force at a vulnerable part of the body. There is no case for the Prosecution that there was any pre-meditation or preparation to commit murder. Both started the quarrel, unarmed and during the quarrel, the applying of blunt force at the neck happened. It was a fight between unequals. Therefore, if the accused applied blunt force at the neck of the deceased, he can take protection behind his right to self-defence. In the result, we sustain the acquittal of the accused on a different ground. Since the accused has committed the crime to save himself, he has not committed any offence. In the result, the Cr.A.No.1441/05 10 acquittal of the accused is confirmed. The Criminal Appeal is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.No.1441/05 11