IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 CRL.A.No. 23 of 2007() --------------------------- SC.574/2005 of SESSIONS COURT, THODUPUZHA .................... APPELLANT(S): ACCUSED ------------------------------ KALIMUTHU, S/O.KANTHAN, PAMPANMALA DIVISION, THALAYAR ESTATE, K.D.H.VILLAGE, MARAYOOR, DEVIKULAM TALUK. BY ADVS. SRI.GRASHIOUS KURIAKOSE SMT.LINDA GEORGE RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON 01/07/2011 DELIVERED THE FOLLOWING: svs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- Crl.A.No.23 of 2007 ---------------------------------------------------- Dated this the 1st day of July, 2011 Judgment Balakrishnan, J. The appellant was convicted by the Sessions Judge, Thodupuzha for offence punishable under Section 302 I.P.C and was sentenced to undergo imprisonment for life. This appeal is directed against the said conviction and sentence passed against him. 2. The gist of the prosecution case is as follows: A sum of Rs.1300/- was due from the accused to deceased Periyaswamy. On 11.4.2004 at about 7.30 PM, while deceased Periyaswamy was proceeding to his house and when he reached near the house of one Veerayya at about 7.30PM, he saw the accused standing there. The deceased asked the accused to pay the amount due to him. The accused stated that he was not having money. The deceased then insisted for payment of money and restrained the accused. The accused then took out the knife (M.O.5) from his waist and stabbed the deceased several times. Crl.A.23/07 2 His son (P.W.6) and others who reached there took the deceased to Tata General Hospital, Munnar. He was examined by the doctor. On the next day, the Sub Inspector of Police (P.W.14) reached the hospital and recorded Ext.P7 F.I.Statement of the deceased. On the same day, i.e., on 12.4.2004 at 11.05 PM Periyaswamy succumbed to the injuries. On 13.4.2004 P.W.17, the Circle Inspector of Police, Munnar took up the investigation, went to Tata General Hospital, Munnar and Ext.P4 inquest report was prepared. Thereafter, the body was sent to the Medical College Hospital, Kottayam from where the postmortem examination was conducted. On 22.4.2004 the accused surrendered before the Circle Inspector of Police. M.O.5, the knife alleged to have been used by the accused for stabbing the deceased Periyaswamy was seized. After completing the investigation, charge sheet was laid against the accused. 3. When the charge was framed and read over to him, the accused pleaded not guilty. P.Ws.1 to 18 were examined and Exts.P1 to P16 were marked. M.Os.1 to 6 were also identified. When the accused was examined under Section 313 Cr.P.C., he denied the prosecution version. Crl.A.23/07 3 4. The learned Sessions Judge after analysing the evidence found the accused guilty, convicted and sentenced as mentioned above. 5. The appellant's contention is that the learned Sessions Judge did not appreciate the evidence properly. All the eye witnesses who were cited by the prosecution did not support the prosecution P.W.6 was in fact not an eye witness to the incident. These facts were not properly considered by the learned Sessions Judge. The learned counsel further submits that even if the injuries found on the body of the deceased were inflicted by the accused, those injuries could have in all probability been caused by the accused in exercise of his right of private defence and as such the accused-appellant is entitled to be acquitted. The learned Public Prosecutor Mr.S.U.Nazar has resisted this argument and submits that the evidence adduced by the prosecution is sufficient to confirm the conviction of the accused. 6. The following points arise for consideration: 1. What was the cause of death of deceased Periyaswamy? 2. Whether the accused stabbed the deceased with the intention to cause the death of Periyaswamy? Crl.A.23/07 4 3. Whether the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death? 4. Whether the plea of private defence putforward by the defence is acceptable? 5. Whether the conviction and sentence passed against the accused-appellant are unsustainable on any of the grounds urged by the appellant? Point No.1 7. Deceased Periyaswamy was first seen by P.W.9, the doctor working at Tata General Hospital, Munnar at 11 PM on 11.4.2004. Ext.P8 is the certificate issued on his behalf by another doctor. The following injuries were seen on the body of the injured-Periyaswamy: 1. Stab injury (lt.) upper abdomen near the costal margin about 2.5 cm - penetrating with bleeding from the rectus muscle tear. 2. Stab injury (lt.) upper abdomen - lateral and inferior to injury No.(1) - 1 cm long-non-penetrating. 3. Stab injury (lt.) lumbar region - 3 cm long penetrating with protruding omentum. 4. Stab injury (lt.) iliec forrea - 3 cm - penetrating with a loop of Crl.A.23/07 5 small intestine protruding. 5. Stab injury (lt.) loin lower part 5 cm - non penetrating muscle laceration present. 6. Stab injury (lt.) loin upper part 2.5 cm - with injury to muscles in the back - non penetrating. 7. Stab injury (lt.) elbow - superficial - 2 cm long. 8. Stab injury (lt.) thigh upper lateral aspect 2.5 cm - involving superficial group of muscles. Out of the aforesaid eight stab injuries, injury Nos.1, 3 and 4 were penetrating injuries. The other injuries were not penetrating. It was testified by PW9 that a major emergency operation- laparotomy was conducted on the injured, Periyaswamy. It was also stated that there were multiple perforations on the proximal jejunum and there was a single perforation on the stomach also. All these injuries were seen to be bleeding. His evidence would show that at 3 p.m. on 12.4.2004 the injured developed weakness of the lower limbs with loss of sensation and he started gasping at 10.55 p.m. and ultimately died at 11.05 p.m. It was further sworn by PW9 that the injuries noted in Ext.P8 could be caused with MO5, knife. Crl.A.23/07 6 8. Ext.P9 is the postmortem certificate issued by PW10, who conducted autopsy on the body of Periyaswamy, the deceased in this case. He has also stated about the 8 ante-mortem injuries referred to earlier. It was stated by him that injury Nos.3, 5 and 6 noted in Ext.P9(corresponding to injury Nos.1, 3 and 4 shown in Ext.P8) are fatal in nature. Those injuries are sufficient in the ordinary course to cause the death of the victim and that those injuries could be caused with a weapon like MO5. In the light of the evidence given by PWs.9 and 10 we have no hesitation to hold that Periyaswamy, the deceased in this case died due to the penetrating stab injuries inflicted on him and that the three penetrating injuries mentioned above were sufficient in the ordinary course of nature to cause his death. Hence it is proved to be a case of homicide. It is also proved that those injuries could be caused by stabbing with MO5, knife. Point Nos.2 and 3: 9. PW1, 2 and 4 were cited by the prosecution as the eyewitnesses to the occurrence. Those three witnesses did not support the prosecution. Though they were cross-examined by the learned Public Prosecutor nothing was elicited in support of Crl.A.23/07 7 the prosecution case. PWs.6 and 7 were not cited as eyewitnesses to the occurrence but their statements were recorded by the Investigating Officer, when Ext.P4 the inquest report was prepared. Out of them, PW7, Tamil Kumar did not support the prosecution. Therefore, the prosecution mainly relies upon the evidence of PW6, Rengaswamy who is the son of deceased Periyaswamy. Learned counsel for the accused would submit that on going through the memorandum of evidence filed by the Investigating Officer it is clear that PW6 was not cited as an eyewitness. He was cited only to prove the seizure of blood stained clothes etc. PW18 has admitted that PW6 did not give a statement that he had actually seen the accused stabbing his father, Periyaswamy. Hence, Sri.Gracious Kuriakose learned counsel for the accused would submit that if as a matter of fact PW6 was an eye witness to the occurrence then certainly PW18 would have recorded the statement of PW6 u/s 161 Cr.P.C. But no such statement was admittedly recorded by PW18 and therefore court cannot rely upon the evidence given by PW6. 10. It was stated by PW6 that his father Periyaswamy had returned from Munnar at about 4 p.m. and remained in the house Crl.A.23/07 8 till 5 p.m. and thereafter he went to a shop and returned from the shop at 5.30 p.m. According to him his father remained in the house till 6.45 p.m. and thereafter his father went towards the house of Veerayaa. He further says that he has also accompanied his father. According to him the incident took place at about 7 p.m. on the way situated near the house of Veerahyya. It was stated by him that near the house of Veerayya the accused was seen and then deceased Periyaswamy asked the accused to pay the amount due to his father. The accused expressed his unwillingness to pay the amount and then the accused stabbed his father eight times and thereafter ran away from the scene. According to the defence the evidence given by PW6 as stated above with regard to the actual incident is contradictory to the prosecution case and the statement contained in Ext.P7, F.I.Statement. 11. Ext.P7 is the first information statement alleged to have been given by deceased Periyaswamy from the hospital at 11.30 a.m. on 12.4.2004. As per this statement the case of the deceased is that he was returning to his house from Munnar at about 7.30 p.m. on 14.4.2004 and when he reached near the Crl.A.23/07 9 house of Veerayya the accused was seen there and then the accused was asked to pay a sum of Rs.1,300/- which he was liable to pay to the deceased. Accused declined to pay the amount. As per the version in Ext.P7 the deceased insisted for payment of money as he was in urgent need of money and then again he refused to heed to the demand and when the accused was trying to go ahead, he was restrained by the deceased and at that time the accused took the knife from his waist and stabbed the deceased continuously and after sustaining the injury he fell down. The learned counsel for the accused would submit that evidence given by PW6 that the deceased reached his house at about 4 p.m. and thereafter he went to the shop and at about 6.45 p.m. he went towards the house of Veerayaa stands contradicted by Ext.P7. It is further contended that there is no averment in Ext.P7 to the effect that at the time of incident his son PW6 was near the scene. As can be seen from Ext.P7 the incident was seen by one Palanivel and others. Learned counsel for the accused submits that if in fact PW6 was present his name could not have been omitted to be stated in Ext.P7. Mere non mention of the names of all the eyewitness to the occurrence is Crl.A.23/07 10 not a reason to hold that PW6 or others had no occasion to witness the incident. 12. Learned counsel for the accused would submit that it is quite unlikely that Ext.P7 statement would have been given by deceased Periyaswamy when he was writhing in pain due to the fatal injuries he had sustained. The prosecution wanted to place reliance on Ext.P7 contending that it should be treated as a dying declaration given by the deceased. Learned counsel for the accused would submit that when Ext.P7 itself is shrouded in mysty no sanctity can be given to Ext.P7. The learned counsel would stress very much upon the fact that the emergency laparotomy was conducted upon the deceased and in all probability he must have been in a precarious condition and also under sedation and so he would not have been in a sound and disposing state of mind to give a coherent statement. It was also pointed out that on 12.4.2004 on two occasions blood had to be given to the deceased. It was at about 12 of clock in the noon one pint of blood was given to the deceased. At 3 PM the patient developed weakness of the lower limbs with loss of sensation and if that be so the version given by the police officer that the Crl.A.23/07 11 deceased gave Ext.P7 statement at 11.30 A.M. is too hard to be digested. It is also contended by the defence that Ext.P7 reached the court only at 11 a.m. on 13.4.04. 13. It is also argued by Sri.Gracious Kuriakose that if PW6 was actually at a distance of about 20 feet from the actual spot he would have suddenly rushed to the spot when the accused first stabbed the deceased, but his consistent version is that he did not intervene as the accused fled away from the scene after inflicting injuries. The prosecution would contend that since the accused inflicted eight stab injuries continuously it is quite possible that by the time PW6 reached there, the accused had taken to his heels. Even though there is inconsistency in the evidence given by PW6 as to how the deceased happened to reach the place of incident still it cannot be said that PW6 had no occasion to see the incident at all. Though a detailed statement was not recorded by the police u/s 161 Cr.P.C., the statement of PW6 is seen recorded in Ext.P4 inquest report. Sri.Gracious Kuriakose is justified in his submission that while the C.I. recorded a detailed statement of PW7 in Ext.P4, the statement of PW6 seen recorded is only a brief or cryptic one containing no Crl.A.23/07 12 details as to how he happened to reach there or as to whether he had tried to intervene etc. It is also pointed out that the statement of PW6 contained in Ext.P4 would only show that the accused had inflicted one stab injury and not eight stab injuries. Be that as it may, the inconsistencies pointed out above and the faulty nature of investigation cannot justify jettisoning of the entire prosecution case. 14. The contention raised by the prosecution that Ext.P7 should be treated as a dying declaration cannot be accepted. The evidence would show that an emergency operation was conducted upon him and as he was weak, blood had to be given twice and he was put under sedation. The fact whether the deceased was in such a state of mind capable of giving a coherent and true account of the incident was not certified by the doctor nor was this statement recorded in the presence of the doctor. The defence would contend that Ext.P7 statement could not have been recorded by the police officer at the time and place as noted therein. So much so, Ext.P7 cannot be treated as a dying declaration as the prosecution wanted to project. 15. The incident happened at about 7-7.30 PM. Though it Crl.A.23/07 13 was contended by the defence that there could not have been sufficient light so as to enable the witnesses to identify the assailant and to see the weapon used by the assailant, there is evidence to show that there was electric light emanating from the bulb fixed on the outer wall of Veerayya's house situated near the scene of occurrence. Besides, there was another street light also. These aspects have been noted by the investigating officer in Ext.P11 scene mahazar also. That apart, since the incident took place at about 7-7.30 PM, there would be twilight also. The witnesses had close acquaintance with the accused. There was wordy altercations for about one or two minutes. The evidence would show that the accused was wrongfully restrained by the deceased. In these circumstances, the contention that there could not have been sufficient light to identify the assailant must also fall to the ground. 16. P.W.17, the investigating officer would swear that the accused was arrested by him at 9 AM on 22.4.2004 and when the accused was questioned, he gave a disclosure statement which was proved by P.W.17 which is to the effect that the accused had concealed the knife underneath the clothes in the trunk kept Crl.A.23/07 14 in the middle room of his house. P.W.17 has stated that as led by the accused, he went to that house and the accused took out the knife from beneath the clothes kept in the trunk as stated above. Thus, M.O.5 was proved to have been seized as per the statement given by the accused. M.O.5 and other material objects were sent for chemical examination. Ext.P16 would show that this knife having a length of 23.4 cm was blood stained. Of course, as the quantity was insufficient the origin could not be ascertained. However, in the facts and circumstances of the case, it could be safely concluded that M.O.5 knife was blood stained and it was recovered consequent to the statement given by the accused. Thus we find that deceased Periyaswamy died due to the fatal injuries inflicted on him by the accused with M.O.5. These points are answered in favour of the prosecution. Point No.4 17. The learned counsel for the accused would submit that even though it would appear from the judgment, that before the court below no specific plea of right of private defence was putforward by the accused, the evidence and circumstances obtained in this case would probablise that the injuries must have Crl.A.23/07 15 been inflicted by the accused in exercise of his right of private defence. Learned counsel would further submit that if the court feels a genuine doubt that the true picture of the incident is not presented before it and when there is genuine doubt regarding the genesis of the incident, despite the fact that the plea of private defence was not specifically putforward by the accused and despite the fact that the accused could not prove or probablise the plea, still the prosecution cannot sustain its case unless the prosecution proved its case beyond reasonable doubt. Learned counsel further submits that it is only where the prosecution has proved its case with reasonable certainty that the court can raise the presumption regarding absence of circumstances bringing the case within any of the exceptions. It was held in Yogendra Morarji v. State of Gujarat [(1980) 2 S.C.C. 218]: “Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary Crl.A.23/07 16 ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, n the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court a reasonable dought with regard to the mens rea requisite for an offence under Section 299 of the Code.” It was also held in Partap v. State of U.P. [(1976) 2 S.C.C. 798] that even if the accused failed to establish his plea in a case where prosecution has not established its case beyond reasonable doubt against the appellant on an essential ingredient of the offence of the murder, the plea of right of private defence cannot reasonably be ruled out from prosecution evidence and the benefit of it must go to the accused. It was also held in Periasami v. State of T.N. [1997 S.C.C. (Cri) 121): “The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal cases except where any particular statute Crl.A.23/07 17 prescribes otherwise. The legal presumption created in Section 105 with the words “the Court shall presume the absence of such circumstances” is not intended to displace the aforesaid traditional burden of the prosecution. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by “preponderance of probabilities” unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide.” The learned Public Prosecutor would submit that there was no case for the accused when P.W.6 and other witnesses were examined that the deceased had carried any weapon or that the deceased or any other person had attempted to attack the accused. Apart from saying that the deceased restrained the Crl.A.23/07 18 accused, there is no evidence to show that the accused could have reasonable apprehension in his mind that he would be attacked by the deceased or that he would be killed or grievous injuries would be caused to him. P.Ws.1, 2, 4 and 7, the eye witnesses did not support the prosecution. But the defence had no case when those witnesses were examined that the accused was attacked by the deceased or any other person. It was argued by the learned counsel for the accused that the circumstances may show that the deceased and his son (P.W.6) and Tamil Kumar(P.W.7) were at the place of incident and so since the evidence of P.W.6 is to the effect that along with the father he also went towards the house of Periyaswamy, it is reasonable to assume that he accompanied his father with a view to attack the accused. Mere assumptions or suppositions cannot be taken as circumstances probablising the defence case when no such suggestion was even put to any of the prosecution witnesses nor was any statement given by the accused when he was questioned under Section 313 Cr.P.C. Of course, from the proved circumstances, it can be discerned that the defence version is also probable. Hence, the court will not be justified in eschewing Crl.A.23/07 19 that plea altogether. But the learned Public Prosecutor would submit that it is a case where there was no case for the accused that he was beaten by the deceased or by any other person. The evidence is to the effect that he took out the knife and inflicted eight stab injuries successively on the body of the deceased, of which three injuries were found to be fatal in nature. The learned Public Prosecutor would submit that it is not a case where, in order to escape from the clutches of the deceased, the accused inflicted one stab injury and fled away. But he inflicted eight stab injuries in quick succession and that was the reason why P.W.6 who was about 20 feet away from the deceased could not come to the rescue of his father. P.W.7 was more than 30 feet away from that scene. Therefore, the circumstances would only strengthen the view that though the deceased restrained the accused when he refused to pay the amount of Rs.1300/- due from him to the deceased, he did not do anything else but there was only wordy altercation; that the deceased told the accused that he will not leave the accused unless the amount is paid and then the accused challenged that if so, let the deceased realise it. That must certainly be a reason to hold that there was grave Crl.A.23/07 20 and sudden provocation to the accused. The learned counsel for the accused would submit that the number of injuries is not always a safe criterion for determining that the accused was the aggressor. In support of his submission, he has relied on a decision of the Supreme Court in Laxman Singh v. Poonam Singh (2003 Crl.L.J. 4478). That was a case where the accused had received injuries and