IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 CRL.A.No. 729 of 2006 ----------------------- SC.68/2005 of ADDL.SESSIONS COURT, THODUPUZHA .................... APPELLANT/ACCUSED: ------------------------ JOY, S/O. ITHAC, PULINTHANATHU VEEDU, ELAMDESAM KARA, VELLIYAMATTEM VILLAGE, THODUPUZHA. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT: COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- Crl.Appeal No.729 OF 2006 ----------------------------------------------------- DATED THIS THE 30th DAY OF JANUARY, 2010 J U D G M E N T Basant, J. The appellant/accused assails the verdict of guilty, conviction and sentence imposed on him under Section 302 IPC. He faces a sentence of imprisonment for life and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of six months. 2. The crux of the charge against the appellant/accused is that on 27.2.2004 at about 6.40 p.m., on account of animosity between him and the deceased consequent to the alleged refusal to return an amount of Rs.50/- which the deceased owed to the appellant/accused, he on the public road near the shopping complex at Velliyamattom Village inflicted a fatal injury on deceased Sabu to which injury, he succumbed later at the hospital. 3. Investigation commenced with Exhibit P1 FI statement lodged by PW1. Exhibit P10 FIR was registered on the basis of Exhibit P1. Investigation was completed and final report was filed by PW14. Crl.A.No.729/06 -2- 4. The prosecution examined PWs 1 to 14 and marked Exhibits P1 to P19. MOs.1 to 11 were also marked. On the side of the accused, he examined an alleged eye witness as DW1. No other evidence was adduced on the side of the accused. 5. We shall initially try to advert to the evidence relied on by the prosecution. PWs 1 and 2 were examined as witnesses who were present at the scene of the crime. Both of them deposed before Court that there was a dispute between the appellant and the deceased and that dispute related to return of an amount of Rs.50/- which the deceased owed to the accused. CW4/DW1 had allegedly attempted to separate them. After he separated them, according to PWs 1 and 2, injuries were inflicted by the appellant/accused on the person of the deceased. Exhibits P1 and P10 are the FI statement lodged by PW1 and the FIR registered on the basis of the same. The incident took place on 27.2.2004 at 6.40 p.m. The said statement was lodged at 8 p.m. on the same day. It reached the learned Magistrate on 28.2.2004. The time when the FIR reached court is not specifically recorded by the Magistrate or his office. MO1 was marked through PW1. MO1 is the knife which was allegedly Crl.A.No.729/06 -3- used by the appellant/accused to inflict injury on the deceased. Through PW2, MOs 2 to 5 were marked. MO2 is the paper used by the accused to cover MO1 knife. MO3 is the towel of the deceased. MO4 is a torn piece of the lunki which allegedly belonged to the accused. MO5 is a sample of blood stained earth. MOs 2 to 5 were available near the scene of the crime. PW3 is an attestor to Exhibit P2 inquest report under which MOs 6 to 9 were seized by PW14, the Investigating Officer. PW4 is an attestor to Exhibit P3 scene mahazar prepared by PW12. PW5 is an attestor to Exhibit P4 seizure mahazar under which MO10 lunki worn by the accused at the time of occurrence was seized by the police. PW6 is a blacksmith and it appears that he was examined to indicate that MO1 was a knife which belonged to the accused. PW7 is the Village Officer who prepared Exhibit P5 sketch. PW8 is a Scientific Expert from the Forensic Science Laboratory. He was examined to prove Exhibits P6 and P6(a) reports. PW 9 is the Doctor who examined the deceased before his death and issued Exhibit P7 wound certificate. PW10 Doctor conducted the postmortem examination and issued Exhibit P8 postmortem certificate. PW11 examined the accused and issued Crl.A.No.729/06 -4- Exhibit P9 wound certificate. It is the case of the prosecution that the accused who had left the scene without any injuries had suffered injuries when he was chased by the local people and he fell down. PW12 is the Assistant Sub Inspector of Police who recorded Exhibit P1 FI Statement of PW1, registered Exhibit P10 FIR and prepared Exhibit P3 scene mahazar. PW13 on coming to know of the commotion that was taking place near the Hospital Junction had rushed to that place. He found the accused lying on the road. The accused allegedly stated that he had suffered the injuries when he fell down. He got the accused admitted to the Hospital and posted police personnel on duty for surveillance. PW14 conducted the investigation and filed the charge sheet. Exhibits P11 to P19 were marked through PW14. Exhibits P11 and P12 are property list under which the seized articles were sent to the Court. Exhibit P13 is the forwarding note under which the articles were sent for scientific examination. Exhibits P15 to P17 are documents relating to arrest of the accused. Exhibit P19 series include the FI statement and the FIR registered by PW14 on the basis of the complaint of the accused while he was in the hospital. Exhibit P18 is the refer report Crl.A.No.729/06 -5- submitted by PW14 after completing the investigation in that crime. 6. The accused in the course of cross examination of the prosecution witnesses and when examined under Section 313 Cr.P.C. attempted to suggest that he was the victim of aggression and that he was not responsible for causing the injuries on the deceased. In the course of his 313 examination, he had advanced a fairly specific version. According to him, the accused and the deceased had got drunk on that evening. The accused had demanded that Rs.50/- which the deceased owed to the accused must be returned. In the morning it was promised that the amount will be returned in the evening. But, in the evening, the deceased refused to return the amount and challenged the accused. He stated adamantly that if the accused can get back the amount, he can do the same. Then there was a push and pull between the accused and the deceased. DW1 Anil separated them. Thereafter the accused went away. The deceased also went away. After taking 10 to 20 steps, the deceased went to the accused and told him that if he wants the cash, it can be returned to him. Then the deceased beat him. Crl.A.No.729/06 -6- Both of them fell down. The deceased was on top, when they so fell down. The accused got up and ran away. While running away his lunki was torn. He took his clothes and ran away. Later, he got himself admitted at the Hospital. This is the specific version advanced in the course of 313 examination by the accused. He examined DW1/CW4, who was cited by the prosecution as an occurrence witness and who was given up by the prosecution. At the defence stage, CW4 was examined by the accused as his witness. 7. DW1 spoke on oath that an incident had happened between the accused and the deceased. They were seen quarreling on the subject of return of amount by the deceased to the accused. DW1 separated them. Thereafter, he walked away. After he took a few paces, he heard the sound of something falling. He found the deceased falling with injuries and the accused moving away from the scene. In the course of cross examination, he admitted the presence of PWs 1 and 2 at the scene of the crime. 8. The court below on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution had Crl.A.No.729/06 -7- succeeded in establishing all ingredients of the offence punishable under Section 302 IPC. Accordingly, the court below proceeded to pass the impugned verdict of guilty, conviction and sentence. 9. We have heard the learned counsel for the appellant Ms.Sangeetha Lakshmana and Shri Noble Mathew, the learned Public Prosecutor. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned verdict of guilty, conviction and sentence, the learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on various grounds. 10. First of all it is contended that no reliance can be placed on the oral evidence of PWs 1 and 2. The accused, a Christian had marred a Muslim without the consent of their relatives. PW1 is a relative of the wife of the appellant. PW3, the attestor to Exhibit P2 is the brother of PW1 and because of the animosity of his wife's family towards him and his wife, PW1 is tendering false evidence as an eye witness, argues counsel. PW2 has also not witnessed the occurrence and he is not speaking the truth, argues counsel. Crl.A.No.729/06 -8- 11. We find absolutely no merit in this contention. Go by the evidence of the defence witness,DW1, it is clearly indicated that PWs 1 and 2 were present at the scene. Go by Exhibit P1 FI Statement, which was lodged by PW1 before PW12 within 1½ hours of the occurrence, we have convincing corroboration for the present version of the prosecution and oral evidence tendered by PW1. In these circumstances, we find absolutely no merit in the contention that PWs 1 and 2 are speaking falsehood against the accused. 12. The learned counsel for the appellant then attempts to advance a contention that the accused did have a right of private defence and that a false version has been advanced to smother and frustrate the attempt of the appellant to advance that version. DW1 was not examined by the prosecution deliberately. There were eye witnesses who have not been examined by the prosecution. In these circumstances, PWs 1 and 2 cannot be reckoned as totally reliable witnesses on whose testimony reliance can safely be placed by courts, contends the learned counsel. Crl.A.No.729/06 -9- 13. We have already taken note of the fact that PWs 1 and 2 are found to be present at the scene of the occurrence and that even DW1 has accepted that fact. We have noted that contents of the contemporaneous FI Statement eminently support the version of PWs 1 and 2. No consequences can hence ensue from the omission of the prosecution to examine other witnesses. Having examined PWs 1 and 2 eye witnesses before Court, the Prosecutor cannot be find fault with for not multiplying the evidence of eye witnesses. 14. The evidence of DW1 clearly shows that at the scene of the crime, the accused did not have any injuries. Even going by the version of the accused in 313 examination also, the accused is not shown to have suffered any injuries. Going by his version in 313 examination, he had only fallen down along with the deceased on the ground. In these circumstances, the version of the prosecution that the injuries found on the person of the accused and recorded by PW11 in Exhibit P9 - insignificant and minor injuries, must have been suffered by him either due to fall when he tried to run away from the scene of the crime or when the persons in the locality chased him and attacked him Crl.A.No.729/06 -10- appears to be acceptable. The injuries found on the accused described in Exhibit P9 cannot in these circumstances at any rate generate any doubt in the mind of this Court about the availability of the right of private defence in favour of the appellant/accused. 15. We have satisfactory evidence that the accused was wielding MO1 knife. The evidence of PW6 indicates that the knife was that of the accused. The accused in his 313 examination or DW1 on oath do not have a case that the deceased was having MO1 knife with him. In these circumstances, the theory of right of private defence and the theory that the deceased may have suffered injuries somehow when he fell down cannot at all be accepted. 16. No proper investigation has been conducted, argues the learned counsel. The counter case has also not been properly investigated, submits the learned counsel. Going by the version of the accused and DW1, the accused has no specific grievance of any crime having been committed against him. In fact, the accused, who contends that the version in Exhibit P19 FI statement was not given by him, had not at any time prior to Crl.A.No.729/06 -11- 313 examination advanced any version to anyone that he was the victim of aggression. In these circumstances, the arguments laboriously advanced on the alleged inadequate investigation of the grievance of the accused do not also carry conviction. 17. Fatal injury was suffered by the deceased at the hands of the accused. That injury was sufficient in the ordinary course of nature to cause death. The same was intentionally inflicted. There is nothing to show that the said injury inflicted was not intended by the accused. The offence proved is certainly one defined under Section 300 IPC. There are no circumstances to show, nay there is no plea even, that any of the Exceptions enumerated in Section 300 IPC would apply to bring the offence back to the one defined only under Section 299 IPC. The appellant/accused is thus clearly guilty of the offence of murder under Section 300 IPC punishable under Section 302 IPC. 18. We are in these circumstances, satisfied that the impugned verdict of guilty, conviction and sentence do not warrant any appellate interference. The sentence imposed also does appear to be absolutely reasonable. The lesser of the two alternative possible substantive sentences alone has been Crl.A.No.729/06 -12- imposed. The sentence of fine of Rs.25,000/- and RI for a period of six months in default does also appear to us to be reasonable. We are not persuaded to agree that the sentence of fine was not called for and deserves appellate interference. The challenge in this appeal, therefore, fails. 19. In the result: (a) this appeal is dismissed. (b) the impugned verdict of guilty, conviction and sentence are upheld. Sd/- R.BASANT, JUDGE. Sd/- M.C.HARI RANI, JUDGE. dsn