IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 CRL.A.No. 1129 of 2006() ------------------------ SC.291/2005 of SESSIONS COURT, PATHANAMTHITTA CP.83/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT(S): -------------- THAMPY @ MANOJ, S/O. JOSEPH, C.NO.151, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAYT DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.No.1129 of 2006 ---------------------------------------- Dated this the 9th day of March 2010 J U D G M E N T Basant,J i) Was the court below correct in placing reliance on the oral evidence of PWs 2 and 3? ii) Does not the totality of facts and circumstances generate a reasonable doubt in the mind of the court about the state of mind of the accused? iii) Is not the accused, at any rate, entitled to the benefit of doubt? These are the questions which the learned counsel for the appellant Sri.Gracious Kuriakose raises in this appeal before us. 2. The appellant, a young man aged about 22 years, is alleged to have caused the death of his grandfather aged about 85 years by hitting him on the head with MO1 spade while he had sat for urination on the courtyard of the house of the deceased at about 12noon on 16/3/2004. This is the prosecution's case. The deceased suffered injuries on 16/3/2004. He Crl.Appeal No.1129/06 2 succumbed to his injuries later on 21/03/2004. Investigation commenced with Ext.P1 F.I.S lodged by PW1, the son of the deceased. The crime was registered at 9.15 p.m on 17/3/2004 and the F.I.R reached the learned Magistrate at 16.30 hours on 18/03/2004. Crime was initially registered under Section 326 I.P.C. In the course of investigation, it was altered initially from Section 326 I.P.C to Section 307 I.P.C and after the death of the deceased the same was altered to Section 302 I.P.C. Consequent to the plea of not guilty urged by the appellant/accused, the prosecution examined PWs. 1 to 12 and proved Exts.P1 to P10. MOs 1 to 3 were also marked. On the side of the accused, no evidence whatsoever was adduced. In the course of cross- examination of the prosecution witnesses, the accused took up a defence of total denial. Parallely suggestions were thrown at the witnesses about the alleged defective state of mind of the appellant. 3. The court below, on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 302 I.P.C. Accordingly, the appellant Crl.Appeal No.1129/06 3 was found guilty, convicted and sentenced under Section 302 I.P.C to undergo imprisonment for life. 4. Before us, the learned counsel for the appellant Sri.Gracious Kuriakose and the learned Public Prosecutor Sri.Noble Mathew have advanced their arguments. The learned counsel for the appellant assails the impugned order on the three grounds which we have raised in paragraph 1 above. 5. An appellate judgment is and must be read as a continuation of the judgment of the trial court. The court below has exhaustively narrated the oral and documentary evidence relied on by the rival contestants. All relevant materials have been adverted to in the impugned judgment. We do not, in these circumstances, think it necessary to re-narrate the relevant facts, evidence, circumstances and materials in this appellate judgment. Suffice it to say that the learned counsel for the appellant has taken us in detail through the oral evidence of PWs 1 to 12 and Exts.P1 to P10. We have also been taken through all other relevant materials including the 313 Cr.P.C examination of the appellant/accused. Crl.Appeal No.1129/06 4 6. The prosecution case rests and the verdict of guilty, conviction and sentence is founded on the oral evidence of eye witnesses PWs 2 and 3. Basically the prosecution relies on the oral evidence of PWs 2 and 3. PW2 is the daughter of the deceased and the maternal aunt of the appellant/accused. Similarly, PW3 is the daughter-in-law of the deceased and the wife of the maternal uncle of the appellant/accused. PW1 is the maternal uncle of the appellant and the son of the deceased. PW3 is his wife. PW1 was not available in the house at the time when the deceased suffered the injury to which he succumbed later. PW3 resides in the same house. PW2 resides a kilometer away from her parental home, i.e. the scene of the crime. She had gone to the house of her parents on that morning as usual at 10 a.m to attend to the domestic chores of washing clothes etc. The deceased and his wife are residing in the house where the incident took place, along with PW1, PW3 etc. 7. Though the learned counsel for the appellant argues that the oral evidence of PWs 2 and 3 must be approached with care, caution, doubt and suspicion, we find absolutely no justification for such an attitude of doubt and distrust against the Crl.Appeal No.1129/06 5 evidence of PWs 2 and 3. They are not shown to have any animosity or ill will against the appellant. The deceased as well as the appellant are related to them. The oral evidence of PWs 2 and 3 clearly indicate that they had witnessed the actual infliction of injury by the appellant on the deceased with MO1. Their evidence is clinchingly supported by the oral evidence of PW1, who reached the scene shortly after the crime when information was passed on to him by his wife PW3. His earliest version is available in Ext.P1 F.I.S and the contents of Ext.P1 convincingly corroborate the versions of PWs 2 and 3. It is the case of the prosecution and the oral evidence of PWs 2 and 3 that the appellant went to the house of his grandparents on that morning at about 11 a.m. He was given something to eat for breakfast. It seems he was not satisfied with the food that was given to him. He came out of the house. Some tapioca was spread for drying in the courtyard. He took one piece and chewed it. He threw it away. He later threw away the entire tapioca which was spread there on the courtyard on a mat. PW2 took objections to such conduct. The appellant allegedly picked up a stick to attack PW2. The deceased took objections to his Crl.Appeal No.1129/06 6 conduct. PW2 was beaten by the appellant with the stick. The deceased had scolded the appellant for such conduct of his. Thereafter the deceased had gone to the edge of the courtyard and sat there to pass urine. It was then that the appellant allegedly went from behind and inflicted the injury on the head of the deceased with MO1. It is the common evidence of PWs 2 and 3 that the appellant stated that this old man deserves to be done away with. 8. In addition to the inter se support which the oral evidence of PWs 2 and 3 offers for each other, we have satisfactory confirmation of their evidence from the oral evidence of PW1 as also Ext.P1. We get further assurance for their version from the blood stained earth which was available in the courtyard. It was sent to the expert PW8, who under Ext.P6 report, confirmed that the soil contains blood. The oral evidence of PWs 2 and 3 gets further support and assurance from the medical evidence tendered by PW7 doctor, who issued Ext.P5 wound certificate as also PW10 doctor who issued Ext.P7 postmortem certificate. The alleged cause narrated to the doctor in Ext.P5 does also confirm that the injury was suffered when he Crl.Appeal No.1129/06 7 was assaulted with the spade at 12 noon on 16/03/2004 at his residence. The name of the assailant is not, of course, mentioned in Ext.P5. The nature of injuries described in Ext.P5 by PW7 and in Ext.P7 by PW10 offers convincing assurance for the oral evidence of PWs 2 and 3. We do not, in these circumstances, entertain any semblance of doubt about the acceptability of the oral evidence of PWs 2 and 3 and about the circumstances under which the deceased suffered the fatal injury. 9. The learned counsel for the appellant submits that the scene mahazer and the scene plan that is Exts.P3 and P4 do not reveal the details of the house so that it is difficult to accept the oral evidence of PWs 2 and 3 who assert that they came to know of the incident when they were inside the house. Approach to the evidence cannot be artificial. It must have relationship to life and ordinary probabilities. It will be totally unrealistic, artificial and puerile for a court to assume that PWs 2 and 3, wherever they may have been inside the house, would not have been able to perceive the manner in which the deceased suffered the injuries of his head. The want of adequate description of the Crl.Appeal No.1129/06 8 inside of the house does not hence in any way, help the appellant to assail the oral evidence of PWs 2 and 3. 10. The learned counsel for the appellant builds up a case from the absence of blood mark on MO1 spade as per the report Ext.P6 of PW8. The learned counsel for the appellant contends that this must lead the court to approach the evidence of PWs 2 and 3 with reservation. We are unable to agree. The evidence suggests that after inflicting the injuries, the accused had used the spade to till the courtyard. The disappearance of blood on the spade could easily have taken place in the course of such conduct. At any rate, the absence of blood on MO1 is not, in the circumstances of the case, a satisfactory reason to approach the testimony of PWs 2 and 3 with any distrust. 11. The learned counsel for the appellant contends that a proper conduct of the case has not taken place before the court below. The appellant was given the services of a State Brief Counsel. It is the contention of the learned counsel for the appellant that the appellant appears to be suffering from some sort of mental ailment. We have been taken through the entire evidence. Either before the police or before the Committal court Crl.Appeal No.1129/06 9 or before the trial court, there was no indication that the appellant was suffering from any mental inadequacy. No officer or court suspected the mental competence of the appellant at any stage. We have gone through the record of the proceedings. We have gone through the 313 Cr.P.C statement of the accused. At no stage, are we able to perceive any such grounds or reasons which must or can even remotely persuade a court to doubt or suspect the mental condition of the appellant. 12. To PWs 2 and 3, specific and definite suggestions were thrown that the accused was mentally unsound. They have totally denied this. PW1, when he was cross-examined, did say that the accused was not having good memory and that he had thought of taking the appellant to the hospital. Except this statement by PW1, there is absolutely nothing which can even remotely persuade the court to entertain any reservation about the mental condition of the appellant. The court below had adverted to this aspect in paragraph 13 of the impugned judgment. 13. We have not a semblance of doubt on the question that the accused is not entitled to the protection of the plea of Crl.Appeal No.1129/06 10 insanity under Section 84. The only question is whether we are satisfied that the accused was properly defended. In the circumstances of the case, we find that it cannot be held by this court that the want of an attempt by the learned counsel for the appellant to pursue the defence of insanity further has resulted in any failure or miscarriage of justice. This aspect was persued but in the wake of the rejection by PWs 2 and 3 of any such possibility of insanity [which assertions, we find no reason to doubt or suspect] we are satisfied that the plea that the appellant has not been properly defended and that a further opportunity be given to him to pursue the defence of legal insanity has no merit. That plea does not at all appeal to us. 14. The evidence clearly shows that the injury described in Exts.P5 and P7 was suffered by the deceased at the hands of the appellant with MO1. He succumbed to that injury. The offence of culpable homicide is clearly established. The injury, it is evident, was sufficient in the ordinary course of nature to cause death. That injury was intentionally inflicted by the appellant. There is nothing to assume or infer that such injury was not intentionally inflicted. The offence, therefore, gets Crl.Appeal No.1129/06 11 exulted to the offence of murder defined under Section 300 I.P.C under clause 'thirdly' of Section 300. There are no circumstances to bring the case within anyone of the exceptions under Section 300 I.P.C so that the offence can slide back to the offence of culpable homicide not amounting to murder defined under Section 299 I.P.C. We are thus convinced that the offence committed by the appellant amounts to murder defined under Section 300 I.P.C and is punishable under Section 302 I.P.C. No other grounds are raised. We are satisfied, in these circumstances, that this appeal only deserves to be dismissed. 15. In the result, a) This Crl.Appeal is dismissed. b) The impugned verdict of guilty, conviction and sentence are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Crl.Appeal No.1129/06 12 R.BASANT & M.C.HARI RANI, JJ. Crl.A.No.1129 of 2006 JUDGMENT 09/03/2010