IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 CRL.A.No. 564 of 2006() ----------------------- SC.720/2004 of II ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT/1ST ACCUSED: -------------------------------------- JIJO DAVID, S/O. DAVID, KIDANGARA VEEDU, KOLAYATTUKARA, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.S.SACHITHANANDA PAI RESPONDENT/COMPLAINANT: ------------------------------------------- STATE - C.I. OF POLICE, MUVATTUPUZHA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN,JJ. ------------------------- Crl.ANo.564 of 2006 -------------------------- Dated this the 16th December 2009 J U D G M E N T K.BALAKRISHNAN NAIR,J. The first accused in Sessions Case No.720/04 of the Court of IInd Additional Sessions Judge, Ernalulam is the appellant. He has been charged by the Circle Inspector of Police, Muvattupuzha along with two others for the offences punishable under Section 341 and 302 r/w Section 34 I.P.C. The trial court acquitted the second accused but convicted the appellant/1st accused for the offence under Section 302 and sentenced him to undergo imprisonment for life and to pay a fine of Rs.15,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Third respondent accused being a minor faced trial before the Juvenile Justice Board. The case of the prosecution in brief is as follows: 2. On 19.4.2002 the deceased along with PWs1 and 2 and Mr.Santhosh went to Sayana bar at Muvattupuzha and drank liquor. It was between 7 p.m Crl.A No.564 of 2006 2 and 9 p.m. The accused 1 to 3 were taking liquor from the bar sitting at the next table. Accused 3, who was a young boy, was found smoking a cigarette, apart from consuming liquor. The deceased asked him for a cigarette and made some derogatory remarks concerning smoking by such a young person. The same led to a quarrel between the two groups. The employees of the bar intervened and the Accused were made to go out of the bar. When the deceased and his friends came out from the bar after 9’o clock the accused were standing outside. The deceased and his friends never had an inkling that the accused will stab the deceased. PW1 along with Santhosh went to make some small purchases. PW2 and deceased were standing together. Suddenly accused 2 and 3 came forward and wrongly restrained the deceased and A1 inflicted a stab injury on the upper part of the abdomen of the deceased using a steel knife and all the accused ran away. Hearing the cries of the deceased, PW1 and Santhosh came back and they saw the accused running away. Immediately PWs1 and 2 called an autorickshaw and took the injured to Crl.A No.564 of 2006 3 Government Hospital, Muvattupuzha. PW13, the Doctor of the said hospital examined the injured and finding that the condition of the patient was serious, directed him to be taken to the Medical College Hospital at Kolenchery. A taxi was hired and he was rushed to the Medical College Hospital Kolencherry, wherein, he was admitted by 11.45 p.m on the same night. Notwithstanding the treatment provided there, he breathed his last on 28.4.2002. 3. On 20.4.2002 itself, PW1 lodged P1- F.I.S which was recorded by PW18 Head Constable and he registered Ext.P17-F.I.R for the offences under Sections 324 and 341 read with Sec.34 I.P.C. On questioning PW13, the Doctor who examined the injured at Muvattupuzha, it was found that the injury sustained by the victim was a grievous one and therefore the investigating officer filed a report before the Magistrate’s Court substituting the offence under Section 324 with one under Section 326 IPC. 4. The S.I of Police prepared the scene mahazar questioned the witnesses and continued with the investigation. On the death of the injured PW22 the Circle Crl.A No.564 of 2006 4 Inspector of Police took over the investigation. He filed a report before the Magistrate converting the offence under Section 326 into one under Section 302. He held inquest of the dead body and arranged for autopsy of it at Medical College Hospital, Alappuzha. He questioned the witnesses, arrested the accused and based on the confession statement of A1, recovered MO1 knife. He completed the investigation and laid the charge before the Judicial first Class Magistrate’s Court-I, Muvattupuzha. The learned Magistrate after following the formalities committed the case for trial by the Sessions Judge as the offences disclosed included murder exclusively triable by a court of Sessions. The learned Sessions Judge made over the case to the Second Additional Sessions Judge for trial and disposal. 5. The accused pleaded not guilty to the charges framed by the trial court. The prosecution to prove its case examined PWs 1 to 22 and marked Exts.P1 to P26. The material object MO1 Knife was identified and marked. From the side of the defence, Exts. D1 to D2 (d) were Crl.A No.564 of 2006 5 marked. They were the contradictions in the depositions of PWs 1 and 2 with reference to their previous statements. When questioned under Section 313 Cr.PC, the accused denied the adverse materials brought to their notice in the evidence adduced by the prosecution. They maintained that they are innocent. The trial court after hearing both sides, found the 1st accused/appellant herein guilty of the offence under Section 302 I.P.C and sentenced him as mentioned earlier. 6. Feeling aggrieved by the conviction and sentence, the appellant has preferred this Criminal Appeal. Learned counsel for the appellant took us through the evidence on record and brought to our notice the contradictions and discrepancies in the statements of the witnesses, especially PWs 1 and 2. 7. Learned counsel also submitted that in view of the discrepancies and contradictions, the appellant is entitled to get the benefit of doubt. It is also pointed out that in any view of the matter, the conviction has to be modified as one under Section 304 Part 2 of I.P.C. Crl.A No.564 of 2006 6 8. The fact that the deceased Jose sustained stab injury at the hands of an assailant at about 9 p.m. on 19.4.2002 in front of Sayana bar at Muvattupuzha is not in dispute. He died because of the stab injury while undergoing treatment at Medical College Hospital, Kolencherry is also not disputed. PW 13 is the Doctor, who examined him at the first instance at Muvattupuzha Taluk Hospital and PW 21 is the Doctor who examined him while he was brought to the casualty at Medical College Hospital, Kolencherry. The said witness also proved the treatment records of the said Hospital, though actual treatment was done by another Doctor. 9. PW16 the Doctor who conducted postmortem examination and issued Ext.P15 certificate also corroborates the above case. So by the medical evidence on record in the form of oral evidence given by PW13, 16 and 21 and also Exts.P10, 15 and P19, it is proved beyond doubt that the death of Jose was due to the stab injury sustained by him. That means his death was homicidal. Crl.A No.564 of 2006 7 10. Now the point to be considered is who inflicted the fatal injury. PW1 would say that after finishing drinking from Sayana bar, he along with PW2, the deceased Jose and another person came out. He went to the opposite side of the road to make some purchases along with Santhosh. He also deposed that while coming out from the bar, he saw all the three accused persons standing outside the bar but he never suspected that they will attack the deceased or anyone among them. While making the purchase, he suddenly heard the cries of Jose and on turning back he found the accused persons running away. So the evidence of PW1 would show that it was one among the accused who inflicted the stab injury. PW2 who was standing by the side of Jose has categorically stated that it was the 1st accused who took the knife, suddenly stabbed Jose and ran away. Though there was extensive cross- examination of the said witness, nothing has been brought out to discredit his version regarding the injuries sustained by Jose. Some minor discrepancies and inconsistencies in his deposition have been brought out with reference to his Crl.A No.564 of 2006 8 previous statement. Regarding the identity of the person who inflicted the injury we are inclined to believe the version of PW2 that it was the appellant who inflicted the stab injury on Jose, which led to his death. The case of the prosecution regarding the stab injury by A1 is corroborated by the recovery of MO1 knife under Section 27 of the Evidence Act. Recovery is proved by an independent witness PW3. Though an attempt was made to discredit his version pointing out his political allegiance, we find no reason to disbelieve that witness. Further the medical evidence supports the case of the prosecution that it was with MO1 knife that the injury was caused. The doctor who conducted the postmortem deposed that the injury sustained by the deceased could be caused by MO1 knife. PW2 has also identified the weapon used for the attack. In view of the above evidence on record, it can be safely concluded that it was the appellant who inflicted the stab injury. Considering the facts of this case, it is not necessary to refer to other evidence on record for the purpose of disposal of this appeal. Crl.A No.564 of 2006 9 11. The next question to be examined is whether the offence committed by the accused will come under Section 302 or under Part 2 of 304 IPC. The case of the prosecution is that accused 2 and 3 wrongfully restrained the deceased Jose and appellant inflicted the stab injury. If he had the intention to cause the death of Jose, he could have inflicted repeated stab injuries. Going by the evidence of PWs 1 and 2, A1 ran away immediately after inflicting one stab injury. It is common ground that there was a quarrel in the bar for the reason that Jose made some derogatory remarks about A3. To take revenge for the same, accused were waiting outside and after inflicting on him a stab injury, immediately they escaped. Though the appellant should be presumed to know that the injury inflicted by him is likely to cause death but in fact he had no intention to cause death. Except the ego clash between two groups of drunkards, there was no motive for committing the crime. 12. Having regard to the above facts, it can be safely concluded that the accused did not maintain any intention Crl.A No.564 of 2006 10 to cause the death of Jose. Appellant only wanted to inflict the injury and teach him a lesson for having challenged him. 13. In that view of the matter, we are inclined to hold that the offence committed by the appellant will fall only under Part 2 of 304 IPC. In the result, conviction and sentence of the appellant under Section 302 I.P.C is set aside. The appellant is convicted for the offence under Section 304 Part 2 of I.P.C and he is sentenced to undergo rigorous imprisonment for 8 years. He will be entitled to get the benefits under Section 428, Cr.P.C. The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE ma Crl.A No.564 of 2006 11 Crl.A No.564 of 2006 12 Crl.A No.564 of 2006 13 Crl.A No.564 of 2006 14