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 SEPTEMBER 2009 / 25TH BHADRA 1931 CRL.A.No. 1589 of 2005() ------------------------ SC.204/1998 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM .................... APPELLANT(S): ACCUSED --------------------- KUMAR @ RAMAN KUTTY, NEDUVATHUVILA VARUTHATTU PUTHUVAYAL, PUTHEN VEEDU, KARUMANNOOR DESOM, PARASALA, TRIVANDRUM. BY ADV. SRI.K.P.JAYACHANDRAN SRI.DILIP MOHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, PARASALA POLICE STATION. PP MR.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Criminal Appeal No.1589 of 2005 ------------------------------------------------------------------ Dated 16th September 2009 Judgment Balakrishnan Nair, J. The first accused in Sessions Case No.204/98 on the files of the Court of Additional Sessions Judge Fast Track I, Thiruvananthapuram, is the appellant. The case of the prosecution, in brief, is as follows : 2. The deceased Thankaraj was engaged in the sale of illicit liquor. The accused 1 and 2 were supplying liquor to him. There were quarrels between them on earlier occasions regarding the non- payment of money by Thankaraj to them for the liquor supplied. On 18.5.1997 at 10 a.m., they picked up a quarrel with Thankaraj. A1, armed with a chopper, chased Thankaraj. A2 exhorted A1 to attack him. A1, using the chopper, which is a dangerous weapon, inflicted a cut injury on the back of the right leg below the knee of Thankaraj and he succumbed to his injury on the same day at 2.15 pm., while undergoing treatment at Medical College Hospital, Thiruvananthapuram. PW1 laid the first information Ext.P1, based on which Ext.P1(a) crime was registered by PW12, the Assistant Sub CRA 1589/05 2 Inspector of Police. The investigation was initiated by PW10, who was the Circle Inspector of Police, in charge of the concerned Police Station. He prepared Ext.P3 inquest report and Ext.P7 scene mahazar. PW13 completed major part of the investigation. PW11 laid the charge before the First Class Magistrate's Court II, Neyyattinkara. The learned Magistrate committed the case for trial by the Sessions Court. 3. The accused pleaded not guilty to the charge before the trial court. The prosecution, to prove its case, examined PW1 to PW13 and produced Exts.P1 to P12 documents. MO1 to MO6 series were also produced. The learned Sessions Judge, after hearing both sides, found the first accused/the appellant herein, guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.5,000/-. In default, he was to undergo rigorous imprisonment for one year. The second accused was found not guilty and was acquitted. The appellant, feeling aggrieved by his conviction and sentence, has preferred this appeal. 4. Heard. We went through the deposition of the witnesses and the relevant documents produced. PW1 is the first informant. The CRA 1589/05 3 deceased Thankaraj was an agricultural worker, who used to work for PW1. On 18.5.1997, at about 10 a.m., PW1, while he was returning after taking bath, found Thankaraj lying by the side of the road with a cut injury on his leg. Thankaraj pleaded for taking him to the hospital. Immediately, PW1 took him in an autorikshaw to Neyyattinkara Government Hospital. The doctor, who examined the injured, advised to take him to the Medical College Hospital. PW1, immediately took him in a taxi to the Medical College Hospital, where he was admitted. Thereafter, PW1 returned to inform the family members of Thankaraj about the incident. In the meantime, he got word that Thankaraj succumbed to his injury. Thereupon, he went to Parassala Police Station and laid Ext.P1 FI statement. PW2 is an occurrence witness. Though he deposed that Thankaraj was attacked by Ramankutty using a chopper and that Pathan was also accompanying Ramankutty, he could not identify the first accused, but he identified the second accused as Ramankutty. Therefore, he was treated as hostile and cross examined. PW3 is the witness to Ext.P3 inquest report. PW4 is the doctor, who conducted the postmortem examination and issued Ext.P4 postmortem certificate. She opined that the death was caused because of injury No.1 and CRA 1589/05 4 also stated that it could be inflicted, using MO1 chopper. The description of injury No.1 reads as follows : “Incised wound 8.5x2x7 cm, obliquely placed on the back and inner aspect of right leg, its upper outer end 12 cm below the knee. The muscles underneath, blood vessels, nerve and fibula were cleanly cut. The wound was directed downwards and to the right.” PW5 is the Village Officer, who prepared the scene plan. PW6 is the witness to the scene mahazar. PW7 is the witness to Ext.P8 seizure mahazar for seizing MO4 dothi of the second accused. PW8 is the witness to Ext.P9 mahazar, as per which MO1 chopper and MO6 series (lunki and shirt) were seized from the first accused. PW9 is another eye witness to the incident. He deposed before court that he went to the place on the fateful day where Thankaraj was selling illicit liquor. He went there to drink arrack as he did not get any work on that day. Thereupon, he saw the first accused chasing Thankaraj and inflicting a cut injury on his leg. The said witness could not go near Thankaraj or take him to the hospital as the first accused threatened to attack him also. So, he ran away to save his life. PW9 is the co-brother of the deceased. Though he was extensively cross examined, he stood his ground and stuck to the CRA 1589/05 5 version given by him in the chief examination. PW10 is the Circle Inspector of Police at the relevant time, who started the investigation by preparing Ext.P3 inquest report and Ext.P7 scene mahazar. PW12 is the Assistant Sub Inspector of Police, who recorded the statement of PW1 and registered the crime. PW13 is the Circle Inspector of Police, who completed substantial part of the investigation. PW11, the successor Circle Inspector of Police filed the final report before the Judicial First Class Magistrate's court. 5. The medical evidence including the postmortem certificate and the deposition of PW4 would prove beyond doubt that Thankaraj died of the injury sustained on his left leg. Having regard to the nature of the injury, it was clear that the same was inflicted by someone else. So, his death was a homicide. 6. Now, the point to be considered is, who committed the crime. The learned Sessions Judge relied on the evidence of PW9 and along with other materials on record and found the appellant guilty of the offence under S.302 IPC. Though, in the investigation, there may be several flaws, we find no reason to disbelieve the version of PW9. The deceased person is a near relative of the said witness and so, CRA 1589/05 6 he has no reason to falsely implicate the appellant and spare the real culprit. Though PW2 has turned hostile, he also tells that Ramankutty has attacked the deceased with a chopper. He is a person aged 70 years, who has poor eyesight. But, he identified Pathan, the second accused as Ramankutty, who committed the crime. Therefore, his version does not support the prosecution. But, the attack and the sustaining of injury by the injured etc., are revealed from his deposition. No material has been brought out to impeach the testimony of PW9, who has categorically stated that it was the appellant, who inflicted the fatal injury. Therefore, we also hold that it was the appellant, who inflicted the injury on the right leg of Thankaraj, which eventually caused his death. 7. The next point to be considered is whether the commissions proved from the part of the appellant would constitute the offence of murder as defined under S.300 IPC. We notice that the accused has inflicted only one injury on the right leg of the deceased. Even according to the prosecution case, there was quarrel between the accused and the deceased regarding non-payment of amounts due from Thankaraj for supply of illicit liquor to him. The injury was not inflicted on the vital organs of the body. It was on the back of the CRA 1589/05 7 right leg. If the appellant intended to murder Thankaraj, he could have inflicted multiple injuries on him till he breathed his last. Nothing stood in his way in doing that. No one came and obstructed him from inflicting the deceased. So, the above facts would show that the offence committed by him will fall only under S.304 Part II IPC, which reads as follows : “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.” 8. Though the injury inflicted by the appellant is likely to cause death, the appellant did not intend to cause death, which is evident from his conduct. In view of the above position, we set aside the conviction of the appellant under S.302 IPC and convert it into one CRA 1589/05 8 under S.304 Part II. We think, a punishment of 7 years' rigorous imprisonment and a fine of Rs.5,000/- will meet the ends of justice. Accordingly, we impose a punishment of 7 years' rigorous imprisonment on the appellant for the offence under S.304 Part II IPC and a fine of Rs.5,000/- (Rupees Five Thousand only). In default, the appellant shall undergo rigorous imprisonment for three months. The appellant shall be entitled to get the benefit of set off for the period he was in custody during the investigation and trial of the case as provided under S.428 Cr.PC. The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta CRA 1589/05 9