IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 891 of 2005 ----------------------- SC.559/2002 of ADDL.SESSIONS COURT (FAST TRACK i), ALAPPUZHA .................... APPELLANT: ACCUSED: -------------------------- SASIKUMAR @ SASI, S/O.PURUSHOTHAMAN, KUNNUKANDATHIL VEEDU, MUTTAR PANCHAYATH, WARD NO.7, MUTTAR VILLAGE. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENT: COMPLAINANT: -------------------------------- STATE OF KERALA (C.I. OF POLICE, PULINCUNNU), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 891 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2009. Judgment Basheer, J: This appeal is at the instance of the accused who has been found guilty under Section 302 IPC. He stands convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for 6 months. 2. The prosecution case in brief was that the appellant/accused inflicted a fatal injury on the neck of Dileep Kumar, the deceased, with M.O.1 chopper because of his previous animosity, on Kindankara-Neerettupuram public road in front of St.Joseph's Chappal at about 7.15 p.m. on March 19, 2000. The incident was allegedly witnessed by Pws. 1 to 3 who were present in the premises of the chappal watching the auction of the offerings made by the devotees at the church in connection with the annual festival. Though the deceased was removed to the hospital he was declared dead by the doctor who examined him. Pw.1 had reported the incident to the Police at about 10.30 p.m. Ext.P1 First Information Statement of Pw.1 was recorded by Pw.9, pursuant to which Ext.P1(a) First Information Report was registered and investigation was conducted by Pw.10, Circle Crl.A.No.891/2005. : 2 : Inspector. M.O.1 chopper and M.O.2 and M.O.2 (a) pieces of stick used by the appellant to commit the crime were also recovered in the course of investigation. Ext.P6 post mortem certificate revealed that death was caused due to the injury suffered by the victim on his neck. Charge sheet was laid by Pw.11 after completing the investigation. 3. Prosecution examined Pw.1 to 11 and marked Exts.P1 to P14 and M.O.1 to M.O.6 on its side. Dws.1 and 2 were examined on the side of the defence and Exts.D1 and D2 were also marked on its side. The learned additional Sessions Judge, after evaluating the oral and documentary evidence on record , held that the prosecution had succeeded in proving the charge against the appellant/accused. Accordingly he was convicted and sentenced as indicated above. The said order of conviction and sentence is under challenge in this appeal. 4. Before we deal with the question whether any interference is warranted with the order impugned in this appeal, it may be profitable to refer to the evidence of the prime witnesses examined by the prosecution in the case. 5. Pw.1 is admittedly related to the deceased and accused. He deposed before court that he was present at the premises of St.Joseph Church at about 7.15 p.m. on March 19, 2000. He had gone there to participate in the auction of the offerings made by the devotees at the Church in connection with the festival. When the Crl.A.No.891/2005. : 3 : auction was in progress, he saw the deceased and accused coming towards the church running from the southern side. When they reached in front of the church the accused who had been following the deceased got in front. Accused was carrying M.O.1 chopper in his right hand and M.O.2 stick in his left. The accused cut at the right knee of the deceased with the chopper. Deceased fell down on the ground. Accused inflicted two more cut injuries on the deceased, the first of which fell just below the shoulder and the second one on the neck in front. Blood started to ooze out from the injury on the neck. The accused also hit the deceased with the stick 4-5 times which fell on several parts of his body. Pw.1 further deposed that himself, his friend Rajeev and Kunjumon ran towards the deceased. At that time the accused ran away with the chopper and stick. When they reached near the deceased he was just grumbling. He was immediately taken to Ramankari in a jeep which came from the southern side. According to Pw.1, Rajeev, Mohanan, Krishnankutty, Dinesan apart from him had taken the deceased in the jeep to Ramankary. Since there was no diesel in the jeep the victim was shifted to an autorickshaw and taken to Alappuzha Medical College The doctor who examined the deceased declared him dead. Pw.1 went to Ramankary Police Station and gave Ext.P1 statement. He stated that he had seen the incident in the light available in the church premises in connection with the festival. He identified M.O.1 chopper in the court as well Crl.A.No.891/2005. : 4 : as pieces of stick [M.O.2 and M.O.2 (a)]. He also identified the shirt and kyli worn by the deceased at the time of the incident which were marked as M.O.s 3 and 4. The shirt worn by the accused was also identified by this witness as M.O.5. M.O.6 chappal worn by the deceased was also identified by this witness. He further stated that the accused had inflicted the fatal injury since he was inimically disposed of towards the deceased who had peeped into the bathroom when the wife of the accused was taking her bath. In cross examination this witness admitted that he had not told the Police that the accused caught hold of the head of the deceased when they reached in front of the church. We will deal with the evidence of this witness in detail a little later. 6. Pw.2 also deposed that he had seen the two accused running towards the church with the deceased in front and the accused behind him. The accused was carrying M.O.1 chopper in his right hand and M.O.2 stick in his left. When they reached in front of the church, accused caught hold of the deceased and inflicted a cut injury below the right knee. This witness also spoke about the two other injuries inflicted by the accused on the deceased almost in identical fashion as was spoken to by Pw.1. He also stated that accused had beaten the deceased with the stick. According to this witness he along with Kochuvava, Mohanan, Krishnankutty and some others went near the deceased after the accused had gone back towards the southern side. To a specific Crl.A.No.891/2005. : 5 : question put to this witness as to whether he knew Pw.1, this witness answered in the affirmative. He stated that Pw.1 was also present at the scene. He further stated that after sending the deceased in a jeep to the hospital he remained at the scene. At about 11 O'clock in the night he was informed by the relatives of the deceased that he was no more. This witness specifically stated that Krishnankutty, Denesan, father of Kochuvava and some others had taken the deceased to the hospital. This witness also deposed that he knew about the quarrel between the accused and deceased in connection with an incident when the deceased peeped into the bathroom while the wife of the accused was changing her dress after her bath. In cross examination this witness disowned Ext.D2 statement allegedly given by him before the Police to the effect that at about 7.15 p.m. on the day of the incident the deceased and the accused had an altercation and that the accused assaulted the deceased as a sequel to the above incident. 7. Pw.3 also spoke about the incident in almost identical terms as spoken to by Pws.1 and 2. This witness stated that he was standing near the Church holding the auction. According to this witness he along with Pw.1 and some others had taken the deceased to Ramankari and from there to Alappuzha Medical College in an autorickshaw. This witness asserted that he was standing near Pw.1 when the incident took place. But this witness further stated that while running, the accused had used Crl.A.No.891/2005. : 6 : filthy language against the deceased. He also stated that the accused had inflicted the injury standing on the right side of the deceased. We will revert back to the evidence of Pws.2 and 3 a little later. 8. Pw.4 who was stated to be a neighbour of the accused did not support the prosecution. Therefore he was declared hostile. He stated that he did not know about any incident that preceded the crime. He did not hear any commotion from the residence of the accused nor did he see any scuffle between the accused and the deceased. He also did not see the deceased hitting the accused on his head in the courtyard of his residence. In short, this witness disowned whatever he had told the Police about the alleged incident. He denied the suggestion that he was speaking falsehood in order to help his neighbour. 9. Pw.5 was a witness to Ext.P8 inquest report. Pw.6 signed as a witness to Ext.P3 search list and Ext.P4 mahazar for recovery of M.O.2 and M.O.2(a). Pw.7 had allegedly witnessed recovery of M.O.1 chopper under Ext.P5 mahazar on March 25, 2000 at about 11.30 a.m. Pw.8 conducted autopsy on the body of the deceased and issued Ext.P6 post mortem certificate. In this certificate the doctor opined that the deceased had died due to injury sustained to neck. The following injuries were noticed by the doctor. “Injuries (Antemortem): 1. Incised wound with contused Crl.A.No.891/2005. : 7 : margins 6.5 x 2 x. 2cm. obliquely placed on the left side of front of neck, its upper outer end was 4 cm. to the left of mid line and 5 cm. below the margin of lower jaw. Lower inner end of the wound was 6.5 cm. above the sternal notch at the mid line which showed a tailing of 0.5 cm. downwards. Lower part of the thyroid gland was found cut and separated. Underneath the muscles were partly cut. Upper part of trachea was partly cut for a length of 2.5 c.m. and air passages exposed. The wound was directed from above downwards. 2. 'C' shaped incised wound with its convexity towards the front 3 x 0.5 cm., muscle deep on the top of right shoulder, just above the collar bone and 3 cm. outer to the root of neck. 3. Two linear abrasions 2.5 x 0.1 cm. and 2 x. 0.1 cm. over an area 6 x. 0.5 cm. and 1.5 cm. apart on the right side of neck, the upper end of the upper one was 1 cm. below the angle of jaw. Both were in a same plain. 4. Incised wound 4 x 0.5 cm. bone deep, horizontal on the front of middle of right knee. 5. Abrasion 2 x 1 cm. on the right side of forehead 1cm. above and inner to Crl.A.No.891/2005. : 8 : the outer end of eye brow. 6. Abrasion 1 x 0.5 cm. on the right side of forehead 3. 5 cm above the injury No.5. 7. Abrasion 1.8 x 1 cm. on the left side of face just above the lower jaw and 4.5 cm. outer to mid line. P.w. 9 Sub Inspector recorded Ext.P1 First Information Statement of Pw.1 and registered Ext.P1 (a) First Information Report. Pw.10 conducted investigation of the case. He spoke about the steps taken by him in the course of the investigation. He also stated that Ext.P12 scene plan was prepared by the Village Officer as requested by him. Pw.11 who conducted part of the investigation deposed that he had obtained Ext.P14 report from the Forensic Science Laboratory. In the said report the Scientific Assistant had found presence of blood on items 1 to 7 which were subjected to chemical examination. The blood stains on items 1 to 6 were found to be human in origin. Item No.7, (M.O.1 chopper) contained only insufficient quantity of blood. Therefore its origin could not be determined. However the Scientific Assistant stated in his report that the blood found on items 1 to 6 and 8 belonged to group 'O'. 10. At the very outset it may be noticed that the accused did not have a case of total denial of his involvement in the crime. Crl.A.No.891/2005. : 9 : Learned counsel fairly conceded that the defence set up before the trial court was primarily based on a plea of act done out of grave and sudden provocation. He submits that the prosecution evidence itself will show that there was a previous incident involving the deceased and the accused three or four days prior to the crime. Pw.1 had categorically stated in Ext.P1 First Information Statement itself that the crime was a sequel to an altercation between the accused and the deceased in connection with an incident in which the deceased had allegedly peeped into the bath room at the residence of the accused while his wife (Dw.1) was changing her dress after her bath. In this context learned counsel would invite our attention to the evidence of Pws. 2 and 3 also. Of course, Pw.4 had also spoken about such an incident before the Police, though he had disowned every such statement before the court. It is further pointed out by the learned counsel that the wife of the accused was in fact cited by the prosecution as a witness (CW.2) but she was not examined. The accused had examined her as a witness on his side. In her deposition Dw.1 had stated that at about 7.15 p.m. on the day of the incident the deceased had come to their residence when the accused was doing some repair work on his hammer. According to Dw.2, the deceased picked up a quarrel with the accused alleging that the accused had been spreading stories about his involvement in the “peeping incident”. Dw.1 further went on to say that in the course of the altercation in the Crl.A.No.891/2005. : 10 : court yard of the house, the deceased had hit the accused on his forehead. Before going away from the scene the deceased had further challenged the accused and told him to do whatever he could to stop him from telling the people what all he had seen in the bathroom. Dw.1 deposed that her husband suddenly became violent on hearing this and ran after the deceased. A little later she heard about the incident. 11. The accused had examined Dw.2 also, who was stated to be a neighbour. According to this witness , on the previous evening while he was standing at the Kairali Junction the deceased had come out of the toddy shop after consuming toddy. He asked Dw.2 whether he had seen the accused (using an abusive terminology). When Dw.2 asked as to why he was enquiring about the accused, the deceased told him that he was going to finish him (accused) off. 12. We have dealt with the above defence taken up by the accused a little too elaborately only to consider the question whether the accused would be entitled to get the benefit of Exception 1 to Section 300 IPC. Significantly the prosecution has not entirely succeeded in brushing aside the above defence theory in toto. As has been mentioned by us earlier, all the prime witnesses on the side of the prosecution had admitted about an altercation between the deceased and the accused prior to the commission of the crime. It is also more or less evident from the Crl.A.No.891/2005. : 11 : materials available on record that the deceased had committed some voyeuristic mischief at the residence of the accused while his wife was taking her bath, three or four days prior to the incident. The specific mention made by Pw.1 about such an incident in Ext.P1 itself cannot be ignored. 13. The only other question is whether the deceased had in fact gone to the residence of the accused and picked up a quarrel with the accused and assaulted him preceding the crime. It is true that there is only the interested testimony of Dw.1 on this aspect. But admittedly all the prime witnesses on the side of the prosecution were unanimous in saying that the deceased and accused had come running from the southern side towards the church. It is the admitted position that the residence of the accused is about 100 meters away on the southern side of the church. There is nothing on record to show that the deceased was living on the southern side of the church. Therefore it could be safely assumed, as is vehemently contended by the learned counsel, that the deceased had in fact gone to the residence of the accused and picked up a quarrel with him and assaulted him as deposed by Dw.1. 14. We have carefully perused the entire evidence on record. We are satisfied that there is considerable force in the contention raised by the accused about the incident that took place at the residence of the accused immediately prior to the commission of Crl.A.No.891/2005. : 12 : the crime. We are therefore of the view that the defence version as narrated above can be accepted. In that view of the matter the conviction of the appellant under Section 302 has to be necessarily altered and modified. 15. Having regard to the entire evidence on record, we are satisfied that the accused can be given the benefit of Exception 1 to section 300IPC. He is therefore convicted and sentenced under Part I of Section 304 Indian Penal Code to undergo rigorous imprisonment for 8 years and also to pay a fine of Rs.50,000/-. In default of payment of fine appellant shall suffer imprisonment for one more year. If the fine amount is realised, Rs.30,000/- shall be paid to the mother of the deceased. Appeal is allowed in part to the above extent. A.K. Basheer Judge P. S. Gopinathan Judge an.