IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 CRL.A.No. 2161 of 2005() ------------------------ SC.325/2005 of .................... APPELLANT(S): ACCUSED: ---------------------- RAJU, S/O. JOHN, AGED 38 YEARS, PARASSERIYIL HOUSE, EENGAPUZHA AMSOM, PADUR DESOM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SMT.C.G.PREETHA SRI.M.PRAVEESH RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON / / , THE COURT ON 22/10/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. No.2161 of 2005 ------------------------------------------------------------------ Dated 21st October 2009 Judgment Balakrishnan Nair, J. The appellant was the accused in S.C.No.325/2005 on the files of the Additional District and Sessions Judge, Fast Track Court, (Ad hoc - II), Kozhikode. 2. The prosecution case in brief is as follows: The appellant and the deceased were brothers. There was some dispute between them, concerning the sharing of family property. They were residing in houses separated by a distance of about 5 metres. On 26.9.2003 at about 7.30 p.m., the appellant using a rubber tapper's knife, inflicted an injury on the chest of his elder brother George with the intention to cause death. The motive was the ill-will between them because of the property dispute. PW2, the wife of the deceased and PW3, the mother of the deceased witnessed the incident. PW1, who was residing in the neighbourhood, came immediately to the scene. He, along with others, took the injured to the Medical College Hospital, Kozhikode. He died in the early hours of 27.09.2003. PW1 lodged Ext.P1 F.I Statement. PW6, the S.I of Police recorded the Cr.A.No.2161/05 2 said statement and registered Ext.P1(a) F.I.R. PW12, the C.I of Police took over the investigation. He held the inquest and filed Ext.P2 report. He arrested the accused and recovered M.O.1 knife under Section 27 of the Evidence Act. He arranged for autopsy, which was conducted by PW5. PW5 issued Ext.P3 post-mortem certificate. He also proved Ext.P4 wound certificate issued by another doctor, who admitted the deceased in the hospital. PW12 prepared Ext.P6 scene mahazar, questioned the witnesses and completed the investigation. He caused the sending of MO2 Lungi worn by the accused and MO1 knife for chemical analysis and obtained Ext.P16 Forensic Science Lab report. On completion of the investigation, PW12 laid the charge before the Judicial First Class Magistrate's Court, Thamarassery. The learned Magistrate committed the case for trial by the Sessions Judge, which, in turn, was made over to the Fast Track Court, (Ad hoc II), Kozhikode. 3. The appellant pleaded not guilty to the charge framed against him by the trial court. From the side of the prosecution, PW1 to PW12 were examined and Exts.P1 to P16 were marked. The prosecution also produced and marked MO1 to MO6. From the side of the defence, D1 to D3(a), which were the portions of statements of Cr.A.No.2161/05 3 the witnesses, recorded under S.161 Cr.P.C. and which were at variance with their depositions before the court, were marked. The learned Sessions Judge, after hearing both sides, found the appellant, guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life and also pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only). In default, he had to suffer simple imprisonment for one year. It was also ordered that if any fine amount is paid/recovered, the same shall be paid as compensation to PW2, the wife of the deceased and her child. Aggrieved by the conviction and sentence, the appellant has preferred this Criminal Appeal. 4. We heard the learned counsel Sri.P.S.Sreedharan Pillai, appearing for the appellant and also the learned Public Prosecutor Sri.P.N.Sukumaran, appearing for the respondent State. The learned counsel appearing for the appellant took us through the depositions of the witnesses and pointed out the discrepancies in their versions. He also brought to our notice that the case unfolded before the court through the deposition of the witnesses was different from the story sought to be proved by the prosecution. According to him, PW2 and PW3 were on inimical terms with the appellant and therefore, their Cr.A.No.2161/05 4 version cannot be relied on. Though several independent witnesses were present at the scene, none of them was examined. According to the evidence of PW1 and PW2, the appellant inflicted only one stab injury on the deceased. But, Ext.P2 inquest report, Ext.P3 postmortem certificate and Ext.P4 wound certificate would show that there were several other injuries on the body of the deceased. The above fact would make the version of PW1 and PW2 improbable. The learned counsel also pointed out that as per the arrest memo prepared when the accused was arrested on 27.09.2003 at 2 pm., there were some injuries on his body. This is admitted by the Investigating Officer to PW12, while in the box also. There is no explanation for the prosecution for the injuries found on the body of the appellant. So, the prosecution has suppressed the real story. Regarding the scene of occurrence also, there is no consistent case for the prosecution or its witnesses. As per the court charge, it is near to the northern courtyard of the house of the appellant, but according to PW2 and PW3, the incident started in the kitchen of the deceased. The appellant came there, caught hold of the deceased while he was in his kitchen, dragged him to the courtyard and inflicted the injury. In the cross examination, PW2 would say that the Cr.A.No.2161/05 5 incident took place in the courtyard of the appellant. The discrepancy regarding the scene of occurrence would make the case of the prosecution further doubtful. In this context, the learned counsel submitted that the case of the appellant stated while questioned under S.313 Cr.P.C. has to be examined. He has spoken of a tussle between him and the deceased, who came to the house of the appellant and attacked him. The injuries on the body of the appellant and the injuries other than Injury No.1 in the postmortem certificate would make the case of the defence probable. Finally, it is pointed out that at any rate, even assuming that Injury No.1 was inflicted by the appellant, it should be taken that he has done it in self-defence. So, having regard to his right of private defence, the appellant is entitled to be acquitted, it is submitted. 5. The learned Public Prosecutor, on the other hand, supported the findings of the learned Sessions Judge. According to him , there is no reason for PW1, PW2 or PW3 to falsely implicate the appellant. Though there may be some minor discrepancies in the versions of PW2 and PW3 regarding the details of the incident and some lapses in the investigation, the evidence of PW1, PW2 and PW3 would prove beyond doubt that it was the appellant, who Cr.A.No.2161/05 6 inflicted the fatal injury, which is Injury No.1 in Ext.P3 postmortem certificate. Even assuming there was a tussle, he has rightly exceeded his right of private defence and the same will be evident from the nature of Injury No.1, it is submitted. 6. We considered the rival submissions made at the Bar and perused the evidence and materials on record. Going by the evidence of PW5 and Ext.P3 postmortem certificate, it is clear that the death of George, the husband of PW2 and the brother of the appellant was a homicide. The accidental fall on a rubber tapping knife and the same causing Injury No.1 was ruled out by PW5, doctor in his cross examination. Even if the deceased fell on a tapping knife, fixed on some surface, such an injury may be possible, but the knife could not be taken out without the assistance of somebody else. Having regard to the facts, we hold that the death of George was a homicide. 7. The next point to be considered is, who inflicted the fatal injury. PW1, who came to the scene, immediately after the incident, deposed before court that the injured had told him that it was his brother, Raju, who inflicted the injury. His testimony remained unshaken in the cross examination. We find, he has no ill-will or Cr.A.No.2161/05 7 animosity towards the appellant to make a false statement before the trial court. PW2 is the wife of the deceased. She has also stated that it was the appellant, who inflicted the fatal injury. The mother of the appellant and the deceased has also stated before the court that it was the appellant who inflicted the fatal injury, using MO1 knife. PW2 has also identified MO1 knife, with which the injury was inflicted. As pointed out by the learned counsel for the appellant, regarding the incidents preceding the stabbing, they have a story different from the story of the prosecution. But, we think, the said contradiction or embellishment, even assuming they are embellishments, cannot be taken as a ground to reject their version in total. They are having ill-will towards the appellant. But, we think PW3, the mother will never falsely implicate his son in a murder case. Further, the prsence of the appellant and the tussle with the deceased at the relevant time, is admitted in the statement under S.313 Cr.P.C. of the appellant. Having regard to the nature of the injury and the medical evidence, the injury could have been caused only by a heavy stabbing, using a weapon like MO1. So, in the tussle, only the appellant could have inflicted that injury. Therefore, we believe the version of PW1, PW2 and PW3 and hold that it was the Cr.A.No.2161/05 8 appellant, who inflicted the fatal injury. 8. The next point to be considered is whether the appellant is entitled to get the benefit of exemption under S.96 read with S.100 IPC. Going by the provisions of S.100, we are of the view that the case of the appellant do not come under any of the circumstances enumerated therein. Going by the evidence on record highlighted by the defence, there was exchange of words and thereafter, a tussle between the accused and the deceased. Nothing prevented the appellant from going away from the scene and making his escape from the assault or attack from his brother. So, we are not impressed by the contention raised by the appellant that he should be held to have exercised his right of private defence. Then, the next point comes, whether the commission by the appellant will be murder, punishable under S.302 or culpable homicide, not amounting to murder punishable under S.304. The injuries other than Injury No.1 on the body of the deceased and the injuries, though minor, noted on the body of the appellant, would show that there was a fight between them and the said fight culminated in the appellant, inflicting the fatal injury. So, we feel that the action of the appellant will come only under S.304 Part II. Section 304 IPC reads as follows : Cr.A.No.2161/05 9 “304. Punishment for culpable homicide not amounting to murder :- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years or with fine or with both if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.” Definitely, the appellant had knowledge that the injury is likely to cause death. But it is not clear whether he had the intention to cause death or to cause such a fatal injury as is likely to cause death. So, we are inclined to take a view, which is favourable to the accused. In the result, the appeal is allowed in part. The conviction of the appellant under S.302 IPC is set aside and he is convicted for the offence under S.304 Part II. He is sentenced to undergo rigorous imprisonment for 7 years. The imprisonment, if any suffered by him Cr.A.No.2161/05 10 during the investigation/trial shall be set off under S.428 Cr.P.C. The punishment of fine imposed, the default sentence provided for it and the direction to pay compensation to the victim's wife and child, shall remain unmodified. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.No.2161/05 11