IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 CRL.A.No. 1958 of 2006(C) ------------------------- SC.160/2005 of ADDL.SESSIONS COURT, KOTTAYAM CP.7/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT: IST ACCUSED ------------------------- MANOJ MATHEW, S/O.MATHAI, CHERIAMACKAL HOUSE, EZHACHERRY KARA, VELLILAPPALLY VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.SUJESH MENON V.B. SRI.MATHEW JOHN (K) SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI. P.N. SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.5.2010 ALONG WITH CRA NO. 1965 OF 2006, THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. Nos. 1958 & 1965 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010 JUDGMENT Joseph Francis, J. Crl.A. 1958 of 2006 is filed by the first accused, Manoj Mathew, and Crl.A. No. 1965 of 2006 is filed by the second accused, Joby Mathew, in S.C. No. 160 of 2005 on the file of the Additional Sessions Court, Kottayam. That was a case charge sheeted by the Circle Inspector of Police, Ramapuram against accused 1 and 2 for the offences punishable under Sections 447, 341 and 302 r/w. 34 I.P.C. 2. The prosecution case is briefly as follows. Accused 1 and 2 are brothers and they are the cousins of deceased Baby Cyriac. On 22.11.2003 at about 6.45 a.m., accused trespassed into the Kuzhimanthikandam rubber plantation in Vellilappally Crl.A. Nos. 1958 & 1965 of 2006 2 Village, Edacherrry kara. The first accused caught hold on the shirt of the deceased, Baby Cyriac, from behind and stabbed below the right side of the back chest with a rubber tapping knife. When the injured tried to run away, the second accused caught Baby Cyriac from behind at his neck and at that time the first accused stabbed him twice on the front chest and stabbed on the front of left shoulder with a rubber tapping knife. As a result the injured sustained fatal injuries. Immediately he was removed to the Govt. Hospital, Pala. On the way to the hospital, he succumbed to the injuries on 22.11.2003 at 7.45 a.m. 3. PW1, Joseph, who is the brother of deceased Baby Cyriac, gave Ext.P1 F.I. Statement on the same day at 11.30 a.m. before the police, on the basis of which, a case was registered as Crime No.222 of 2003 of Ramapuram Police Station under Sections 341, 447 and 302 r/w Section 34 of I.P.C. After the investigation charge sheet was Crl.A. Nos. 1958 & 1965 of 2006 3 filed before the J.F.C.M., Pala, from where the case was committed to the Session Court, Kottayam. Subsequently the case was made over to the Addl. Session Court, Kottayam for trial and disposal. 4. In the Addl. Sessions Court, on the side of prosecution, PW1 to PW17 were examined and Exts.P1 to P9 were marked and M.Os.1 to M.O.8 were identified. On the side of the defence, DW1 was examined. The Additional Sessions Court, on considering the evidence, found that accused 1 and 2 committed offences punishable under Sections 447, 341 and 302 r/w. 34 I.P.C. They were convicted and sentenced to undergo imprisonment for life under Section 302 r/w. 34 of I.P.C. and S.I. for three months under Section 447 r/w. 34 of I.P.C. and S.I. for one month under Section 341 r/w. 34 I.P.C. Against that conviction and sentence the above appeals are filed. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. Crl.A. Nos. 1958 & 1965 of 2006 4 6. PW1, Joseph, and PW2, James, are the brothers of deceased Baby Cyriac. Their father Kurian and father of the accused, viz. Mathai are brothers. Kurian and Mathai had another brother called Ousepachan, who was an unmarried person and owned some immovable properties and he died. There was some disputes between the children of Mathai and children of Kurian with regard to the partition of the properties belonging to deceased Ousepachan. The prosecution alleges that accused 1 and 2 committed murder of deceased Baby Cyriac due to enemity connected with the property dispute. 7. According to the prosecution case, PW1 is an eye witness to the occurrence. His evidence shows that his father got 2 ½ acres of rubber plantation. On 22.11.2003 at about 6.30 a.m. he went to Puthenkandam rubber plantation for tapping rubber. His elder brother and the deceased also went to their rubber plantation at about 6.30 a.m. for tapping rubber. The deceased was tapping in the Kuzhimanthikandam plantation, which is 50 metres away from the Crl.A. Nos. 1958 & 1965 of 2006 5 Puthenkandam plantation. After tapping 20 trees, PW1 heard the cry of his brother. “ Immediately he rushed to the spot from where he heard the cry and he saw the second accused caught hold on the neck of his brother and first accused stabbed thrice on his chest with a rubber tapping knife. As a result the deceased sustained serious injuries on the chest and shoulder and bleeding from the wound. The accused took the deceased towards their house to a distance of 50 meters. PW1 cried loudly and on hearing the cry, PW2 and PW3, his brother's wife Kusumam and several other people gathered there. When people gathered there accused ran away from there with the weapon. After this PW1 came near the deceased and asked what happened. At that time deceased told that : Crl.A. Nos. 1958 & 1965 of 2006 6 Immediately PW1 rushed to Ezhacherry junction and brought an autorikshaw and removed his brother to Taluk Hospital, Pala. After examination doctor informed that the injured died. PW1 reported the matter to the Ramapuram police and gave Ext.P1 statement. PW1 identified M.O.1, M.O.2, M.O.3, M.O.4 and M.O.5. M.O.1 is the rubber tapping knife used by his deceased brother. M.O.2 is the rubber tapping knife used by the first accused for stabbing the deceased. 8. The evidence of PW1 was supported by PW2, who is the elder brother of the deceased. His evidence shows that on 22.11.2003 at about 6.30 a.m. he was tapping rubber in his property near his family house. At about 6.45 a.m. he heard the cry of his brother. On hearing the cry he went to the place of the occurrence with his wife. When he reached there, the deceased was found sitting by the side of the road. When he reached near the deceased, he informed that the first Crl.A. Nos. 1958 & 1965 of 2006 7 accused stabbed him with a rubber tapping knife. Immediately the injured was removed to the Government Hospital, Pala. When PW2 reached near the deceased, the accused were proceeding towards their house. PW2 did not see the incident and he was treated as hostile by the prosecution . He identified M.O.6 and M.O.1 9. PW3, Santhi, is the wife of PW1. PW3 deposed that the deceased is her husband's brother and on 22.11.2003 at 6.45 a.m. she heard the cry of the deceased. Immediately she ran towards the place of occurrence with PW2 and PW4. When they reached at the place of occurrence, PW1 informed them that the accused stabbed the deceased. They found the deceased sitting by the side of the road. The accused were found running from the place of occurrence to their house. When she came near the deceased she found two bleeding injuries on the chest and one injury on the shoulder. The deceased was able to speak. The deceased told her that accused stabbed him with rubber tapping Crl.A. Nos. 1958 & 1965 of 2006 8 knife. PW3 identified M.O.4, M.O.5 and M.O.6. She cleaned the injuries with a towel. After this the injured was removed to the hospital. 10. PW4, Sasi, is a neighbour of the accused. The evidence of PW4 shows that while he was tapping rubber trees in the property of Suresh, Paravanparambu he heard a cry and immediately rushed to the place of occurrence. The deceased and the accused were standing in the property of the accused. The first accused was carrying a rubber tapping knife. At that time Pws.1 to 3 and CW4 came there. They were also standing 50 metres away from the accused. When Pws.1 to 3 and CW4 came near the deceased, accused ran away. PW4 categorically stated that he was the first person who reached near the deceased and others came there after him. This witness was treated as hostile by the prosecution. Crl.A. Nos. 1958 & 1965 of 2006 9 11. PW8 deposed that on the date of the incident, at about 6.45 a.m. the first accused informed that the deceased sustained stab injury and requested him to remove the deceased to the hospital. He admitted that he heard the hue and cry before 6.45 a.m. from the place occurrence. When he reached there, the deceased was sitting by the side of the road leading to the house of accused. PW1 brought an autorikshaw and the deceased was removed to the hospital. 12. PW12 is the doctor, who conducted the postmortem examination on the deceased and issued Ext.P12 postmortem certificate. Ext.P12 reads as follows: General - Body was that of a well nourished and well built, fair complexioned, adult male of height 173 cm and weight 84 Kg. Eyes closed. Pupils dilated and equal on both sides. Conjunctivae and finger nails pale. All other external body orifices normal. Dry bloodstains on both hands. Crl.A. Nos. 1958 & 1965 of 2006 10 Injuries (ante mortem) 1. 'U' shaped incised penetrating wound obliquely placed on the right side of the back of chest. Its horizontal limb was 3 cm long and certical limbs (directed upwards) 1.5 cm each. The inner lower end of its horizontal limb was 16 cm outet to the midline and 19 cm below top of shoulder. Right chest wall was penetrated through the 8th inter costal space and cutting the 8th rib, the wound entered the right chest cavity and terminated in the lower lobe of right lung. The wound was directed forwards, downwards and to the right for a total minimum depth of 7.5 cm. Right chest cavity contained 780 ml. of blood with clots and right lung was partially collapsed. 2. 'U' shaped incised penetrating wound obliquely placed on the left side of the front of chest. Its horizontal limb was 3 cm long vertical limbs directed obliquely upwards measured 1.5 cm each. The lower inner end of its horizontal limb was placed 7 cm below collar bone and 13 Crl.A. Nos. 1958 & 1965 of 2006 11 cm outer to the midline. Left chest wall was penetrated through 3rd intercostal space and partly cutting the upper horder of 4th rib, entered the left chest cavity and terminated there. Total minimum depth was 4.5 cm. Left chest cavity contained 800 ml. of blood with clots. 3. 'U' shaped incised punctured wound obliquely placed on the front of left shoulder. Its horizontal limb was 3 cm long and vertical lmbs, obliquely directly downwards measured 1.5 cm each. The upper right end of the horizontal limbs was 5 cm above the front fold of armpit. Cutting the muscles and other soft tissues, the would was seen terminated in the outer aspect of the left chest wall. The wound was directed downwards and to the right for a total depth of 12 cm. 4. Incised wound with multiple side cuts 8x3x1 cm obliquely placed on the left side of the front of chest. Its upper outer end was 16 cm below collar bone and 10 cm outer to the midline. Crl.A. Nos. 1958 & 1965 of 2006 12 5. Multiple linear abrasions over an area 4 x 2 cm horizontally placed on the front of middle of abdomen 20 cm above public symphysis. 6. Linear abrasion 9x0.3 cm obliquely placed on the right side of the front of chest its upper inner end was 4 cm outer to the midline and 10 cm below the collar bone. Opinion as to the cause death - was due to penetrating injuries sustained to the chest (injury Nos.1 and 2). 13. PW12 opined that injury Nos.1 and 2 are sufficient in the ordinary course of nature to cause death. Injury Nos. 1 to 4 could be caused by M.O.2 weapon. Injury Nos. 5 and 6 also could be caused by coming into contact with M.O.2 weapon. Injury Nos.1 to 3 can be caused by a forcible stab with M.O.2 weapon. At the time of examination bloodstained cotton was collected and handed over to the police constable No.4878 in a sealed packet. The horizontal limb of Crl.A. Nos. 1958 & 1965 of 2006 13 injury Nos.1 to 3 must correspond to the width of the weapon. The width of M.O.2 is 1 mm. less than 3 cm. Allowance of .5 c.m. can be given for the stretching of the muscle tissue. It is not correct to say that since the weapon is having vertical blades on both sides the length of the horizontal limb must correspond to the width of the weapon. If the remaining portion of the weapon is entered into the body, the wound will be having more length. PW12 categorically stated that injury Nos. 1 an 2 are sufficient in the ordinary course of nature to cause death. Injury Nos.1 to 4 could be caused by M.O.2. weapon. 14. The defence set up by accused 1 and 2 is contained in the written statement filed by the first accused while he was questioned under Section 313 Cr.P.C. The second accused adopted the defence case set up in the written statement of the first accused. 15. The first accused stated that he was tapping rubber trees in his Kuzhimanthikandam property and the second accused was tapping Crl.A. Nos. 1958 & 1965 of 2006 14 at a short distance. The deceased trespassed into the property of the first accused with a tapping knife and threatened to murder the first accused and stabbed several times. He warded off the stabbing and escaped. The tip of the knife hit on his fingers and sustained injury. When the first accused felt that the deceased will murder him, immediately he took a knife and waved against the deceased. There was scuffle between the deceased and the first accused. On hearing the cry, the second accused came there are separated them. At that time the second accused told that the deceased sustained stab injury and told him to remove the deceased to hospital. Both of them took Baby Cyriac towards their property and the second accused brought a vehicle for removing the injured to the hospital and the relatives of the deceased did not allow it. There was no overtact from their part. The second accused stated that he is innocent and nothing more to say than what was stated by the first accused. Crl.A. Nos. 1958 & 1965 of 2006 15 16. PW14 is Dr. Gracy George, who was working as Assistant Surgeon, Government Hospital, Ramapuram. She deposed that on 24.11.2003 she examined the first accused, Manoj, and issued Ext.P14 wound certificate. She noted a small injury on the left index finger inner aspect. .5x .5 cm. The linear crusted abrasion extended from the left ankle of mouth lateral about 1.5 cm. A small abrasion over the dorsum of left wrist. The alleged cause was : Opinion - may be as alleged. She stated that injury Nos. 1 to 3 can be caused by contact with any rough surface. The injury is having an age of two days. The linear abrasion is the result of contact with some sharp object. Since the injury is of two days' age, it is very difficult to say that injury No. 3 is a linear abrasion or not. She opined that it is very difficult to say the injuries can be possible with the tip of M.O.1. Crl.A. Nos. 1958 & 1965 of 2006 16 The wounds are not sutured and the wounds are only skin deep injuries. 17. On the side of the accused CW8, Binoy was examined as DW1. He deposed that he is the neighbour of the deceased. On the day of incident at about 6.45 am., while he was brushing teeth he heard a cry from Kuzhimanthikandam property. When he rushed to the place of occurrence, PW2, PW3 and CW4 were proceeding in front of him. PW1 was coming from Puthenkandam and joined with them. At that time, accused 1 and 2 were holding the deceased and walking along the road towards the house of the accused. The deceased was unable to walk and he sat by the side of the road and in the meantime accused ran towards their house. PW3 at that time approached the deceased and PW2 hired a vehicle. The second accused came there with a vehicle and tried to remove the deceased to the hospital. But PW3 obstructed this. Crl.A. Nos. 1958 & 1965 of 2006 17 18. The learned counsel for the first accused/appellant submitted that the first accused is claiming the benefit under exception 4 to Section 300 I.P.C. The learned counsel for the second accused/appellant submitted that the testimony of PW1, who is the only alleged eye witness, cannot be believed as PW1 was standing 50 meters away from the place of occurrence and in cross examination PW1 admitted that total distance between the two properties was more than 109 meters. The learned Public Prosecutor supported the judgment of the lower court. 19. To invoke exception 4 to Section 300 I.P.C. four requirements must be satisfied, viz. (1) it was a sudden fight upon a sudden quarrel (2) there was no pre-meditation, (3) the act was done in a heat of passion and (4) the assailant has not taken any undue advantage or acted in cruel manner. Crl.A. Nos. 1958 & 1965 of 2006 18 20. In the decision reported in Sukhbir Singh v. State of Haryana (2002 (3) SCC 327 ) it was held in paragraph 19 that: The High Court has also found that the occurrence had taken place upon a sudden quarrel but as the appellant was found to have acted in a cruel and unusual manner, he was not given the benefit of such exception. For holding him to have acted in a cruel and unusual manner, the High court relied upon the number of injuries and their location on the body of the deceased. In the absence of the existence of common object, the appellant cannot be held responsible for the other injuries caused to the person of the deceased. He is proved to have inflicted two blows on the person of the deceased which were sufficient in the ordinary course of nature to cause his death. The infliction of the injuries and their nature proves the intention of the appellant but causing of such two injuries cannot be Crl.A. Nos. 1958 & 1965 of 2006 19 termed to be either in a cruel or unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of exception 4 of section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in helpless position. It is proved that in the heat of passion upon a sudden quarrel followed a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner. 21. In the decision reported in Jumman v. State of Punjab (AIR 1957 S.C 469) it was held that: Where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor. It will not be correct to assume private defence for both sides. Crl.A. Nos. 1958 & 1965 of 2006 20 Such a case will be case of sudden fight and conflict and has to be dealt with under Section 300 I.P.C., Exception 4. 22. In the decision in Amrithalinga Nadar v. State of Tamil Nadu (AIR 1976 SC 1133) the Apex Court held that when fatal injury is caused without premeditation in a sudden fight in a heat of passion upon a sudden quarrel, exception 4 to Section 300 I.P.C. will apply. In that case, in a sudden fight the deceased inflicted knife injuries on two persons and ran away with the knife. The accused enraged by this, chased the deceased and inflicted fatal injury on him. The entire incident was taken in a very short time. It was held that exception 4 to Section 300 I.P.C. is attracted and conviction under Section 302 I.P.C. was altered to one under Section 304 Part I of I.P.C. Crl.A. Nos. 1958 & 1965 of 2006 21 23. Under Criminal Law an accused person is not called upon to prove his defence affirmatively. It is enough for the accused to show either by his own evidence or from statements of prosecution witnesses themselves that his defence is a probable one. There is no impediment in law in passing conviction on the testimony of a single witness, if the court comes to the conclusion that his evidence is honest and trustworthy. In the present case, PW1 is the brother of the deceased, who gave Ext.P1 F.I. Statement before the police immediately after the occurrence and he is the only eye witness supporting the prosecution case. PW2, who is another brother of the deceased turned hostile to the prosecution case. 24. The main question to be considered is whether PW1 saw the entire occurrence from the beginning to the end. From the testimony of PW1 itself it is evident that he rushed to the scene of occurrence on hearing the cry of his deceased brother Baby Cyriac and at that time PW1 was engaged in rubber tapping work in his rubber plantation at a Crl.A. Nos. 1958 & 1965 of 2006 22 distance of about 50 - 109 meters. Ext.P12 postmortem certificate shows that the deceased had sustained injury No.1, which is a 'U' shaped penetrating wound on the right side back of the chest. PW1 has no case that he saw the first accused causing injury No.1 on the right side of back of chest of the deceased. Therefore it is clear that PW1 has not seen the beginning of the scuffle. 25. Ext.P14 wound certificate shows that the first accused sustained injuries on 22.11.2003 at 6.30 a.m. at his Kuzhimanthikandam property. PW4 deposes that the property belonging to the accused and deceased are lying as one plot. DW1 deposes that there is no boundary to separate the properties of both the parties. PW16, who prepared the scene mahazar, deposed that the scene mahazar was prepared as shown by PW1. 26. DW1 deposed that it is not possible to see Kuzhimanthikandam property by standing in Puthankandam property in which PW1 was standing at the beginning of the occurrence. PW4 Crl.A. Nos. 1958 & 1965 of 2006 23 deposed that when he came to the scene of occurrence on hearing the cry, both the accused and the deceased were standing in the property of the accused. The evidence adduced on the side of the prosecution would not show how the occurrence started. The evidence on record shows that there was some property dispute between the accused and the deceased about 5 years ago. There is no evidence to show the immediate cause for the scuffle, which resulted in the death of the deceased. 27. PW8