IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 CRL.A.No. 2033 of 2007() ------------------------ SC.1146/2006 of I ADDL. SESSIONS COURT, KOLLAM .................... APPELLANT: -------------- SURENDRAN, C.NO.2081, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.SAJEEV.T.P. RESPONDENTS: --------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.2033 of 2007 ***************************** Dated this the 7th day of December, 2011 JUDGMENT BASANT, J. (i) Was it safe for the court below to accept and act upon the oral evidence of PWs 4 to 9 about the incident? (ii) Was the court correct in coming to the conclusion that on facts the offence alleged against the accused falls under the offence of murder defined under Section 300 I.P.C? These are the questions that are raised for our consideration by Advocate Sajeev.T.P in this appeal. 2. The appellant is a 37 year old bachelor son of the deceased, a woman, aged about 54 years. The appellant along with his brother in law (absconding accused No.2) is alleged to have intentionally caused the death of the deceased by assaulting her - to be specific, by kicking her, in their family house between 9.30 and 11 p.m on 13.07.2004. 3. The crime was registered on the basis of Ext.P1 F.I statement lodged by PW1, a brother of the appellant and another son of the deceased woman. The crime was initially registered under the caption `unnatural death'. After completing the Crl.Appeal No.2033/01 2 investigation, PW18 Circle Inspector filed final report/charge sheet raising the allegations under Section 302 read with 34 I.P.C against both accused - the appellant and his brother in law. 4. The learned Magistrate committed the case to the Court of Session after observing all legal formalities. The 2nd accused was not available to be proceeded with. The learned Sessions Judge framed charges against the appellant/1st accused. He denied the charges. Thereupon the prosecution was directed to adduce evidence in support of its case. 5. The prosecution examined PWs 1 to 18 and proved Exts.P1 to P16. M.Os 1 o 13 were also marked. 6. PW1 and PW3 are the brother and father of the appellant. They tendered evidence about the alleged motive for the occurrence. PWs 4, 5 and 9 are neighbours who have their residence close to the house where the incident allegedly took place. PWs 4 and 5 claim to have witnessed the incident proper. PW9 claims to have known the unfortunate events that took place in the house of the deceased. PWs 6 to 8 are minor children of the 2nd accused. They, all child witnesses, claim to have witnessed the occurrence in which the deceased suffered injuries at the hands of the appellant and his brother in law. Crl.Appeal No.2033/01 3 7. When examined under Section 313 Cr.P.C and in the course of cross examination of witnesses, the accused denied all circumstances which appeared in evidence and which were put to him. At the close of examination under Section 313 Cr.P.C, he took up a fairly specific and definite stand. He contended that he was not available at the scene of the crime at all. He alleged that his brother in law, the 2nd accused, was the real culprit and that he, who is absconding, was prevailing upon the witnesses to make false allegations against the appellant. No defence evidence was adduced. Ext.D1 a case diary contradiction was marked when PW4 was examined as a witness. The learned Sessions Judge held that the charge against the appellant has been proved and proceeded to pass the impugned judgment. 8. We have heard the learned counsel for the appellant and the learned Pubic Prosecutor. The learned counsel for the appellant submits that the learned Sessions Judge had erred grossly in accepting and acting upon the oral evidence of PWs 1 and 3 about the motive and PWs 4 to 9 about what transpired in the house of the deceased on that fateful night. The learned counsel for the appellant further contends that even if the entire case of the prosecution were accepted, it would be unsafe to Crl.Appeal No.2033/01 4 assume that the offence of murder defined under Section 300 I.P.C has been made out. At any rate, only the offence of culpable homicide not amounting to murder defined under Section 299 I.P.C alone is revealed, contends the learned counsel for the appellant. 9. The learned Public Prosecutor in reply contends that there is nothing to disbelieve the evidence of PWs 1 and 3 to 9. It is absolutely safe to place reliance on their testimony. Their evidence need not be discarded by a prudent mind, contends the learned Public Prosecutor. 10. The learned Public Prosecutor finally submits that the totality of circumstances in this case can and should persuade this Court to conclude that the obvious intention of the appellant and the co accused was to cause the death of the deceased. That inference of prudence clearly emanates from the totality of circumstances, contends the learned Public Prosecutor. 11. We have considered the rival contentions. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court. We deem it unnecessary to re- narrate the oral evidence of PWs 1 to 18 or the contents of Exts.P1 to P16. Suffice it to say that the learned counsel for the Crl.Appeal No.2033/01 5 appellant has read to us the oral evidence of PWs 1 to 18 in detail. The contents of Exts.P1 to P16 have also been read to us. The charge framed by the learned Sessions Judge and the answers given by the accused in his examination under Section 313 Cr.P.C have also been brought to our attention. We shall advert to the relevant materials specifically wherever necessary in the course of the discussions in this judgment. 12. The appellant is the son of the deceased. PW3 is the husband of the deceased. PW1 is another son of the deceased. The appellant has a sister (ie. the wife of the 2nd accused). She is employed abroad at London. 3 children of the sister - PWs 6, 7 and 8, all minor school going children of tender age, were left with the deceased and the deceased was looking after those children. The unmarried appellant was residing along with the deceased. The 2nd accused, the son in law of the deceased and father of PWs 6 to 8 was also residing with her in the family house “Geetha Bhavanam”, where the incident took place. PW1 along with his family resides away from the family house. PW3, the father of the appellant, was residing along with his wife. But because of certain untoward conduct on the part of the appellant, he had gone to the house of PW1 and had taken Crl.Appeal No.2033/01 6 shelter there. It is in this background that the alleged incident takes place on the night of 13.07.2004. According to PWs 1 and 3, demand for money/share in property used to be made by the appellant and his co-accused. Deceased did not comply with such demands and that allegedly operated as the motive for the miscreants to entertain a grouse against the deceased. The evidence of PWs 1 and 3 reveal the alleged motive. The evidence of PWs 4, 5 and 9, the neighbours, confirm the motive. The evidence tendered by PWs 6 to 8 eminently support this theory of motive for the appellant and the co-accused against the deceased. We note that the court below has appreciated the evidence of PWs 1 and 3 to 9 in the proper perspective. Not a semblance of doubt is left in our mind about the alleged motive entertained by the appellant and the co-accused against the deceased. The zone of disagreement is clearly brought out. 13. We now come to the incident proper. We have the evidence of PWs 4 and 5, who are neighbours. They heard the cries and commotion from the house of the deceased. It was not anything special to them. Such quarrels and incidents were a daily occurrence in the house of the deceased. But still the attention of PWs 4 and 5 was drawn to the scene of occurrence Crl.Appeal No.2033/01 7 on hearing the cries of the deceased. They had seen both accused persons indulging in overt acts against the deceased. PWs 4 and 5 are next door neighbours and the scene mahazar Ext.P10 and the scene plan Ext.P5 clearly show that PWs 4 and 5 have their residences close to the house of the deceased. PW9 another neighbour had also heard the cries of the deceased from the house of the deceased. The evidence of PWs 4 and 5 is duly supported by the evidence of PW9. These clearly show that the deceased was assaulted inside her house by the appellant and the co-accused acting in furtherance of their common intention. 14. The ocular account of PWs 4 and 5 is further supported by the oral evidence of PWs 6 to 8. PWs 6 to 8 are undoubtedly child witnesses. They were residing with the deceased. The deceased used to attend to their needs in the absence of their mother. Their evidence clearly shows that the appellant and his brother in law (the co-accused) used to regularly indulge in contumacious acts of violence against the deceased. PWs 6 to 8 are of course child witnesses. The mere fact that they are child witnesses is no reason for a prudent mind to squander their testimony if the same is otherwise found to be worthy of acceptance. The evidence of PWs 6 to 8 is in this Crl.Appeal No.2033/01 8 context of crucial relevance and deserves careful appreciation on broad probabilities and for their intrinsic worth. If we accept the evidence of PWs 4 , 5 and 9, an incident must have taken place in the house of the deceased in which she suffered injuries at the hands of the appellant and his brother in law. PWs 6 to 8 indisputably are the occupants of that house along with the deceased and the alleged miscreants. The opportunity for PWs 6 to 8 to perceive the incident is thus real and reasonable. We have gone through the evidence of PWs 6 to 8 very anxiously. Though PW8 does not specifically make allegations of overt acts against his father, the co-accused, the evidence of PWs 6 and 7 clearly shows that they painted their father (the absconding co- accused and the appellant, who faced the trial) with the same brush. The theory strenuously advanced by the appellant that witnesses including PWs 6 to 8 are tendering evidence at the instance of his absconding brother in law/co-accused falls flat to the ground when we carefully examine the evidence tendered by PWs 6 to 8. 15. The evidence of PWs 4 to 8 of their ocular perception of the violence perpetrated by the accused persons on the deceased is thus eminently supported by the oral evidence of Crl.Appeal No.2033/01 9 PW9, the evidence tendered by PWs 1 and 3 about the motive as also the contents of Ext.P1 F.I statement. The medical evidence tendered by PW13 and Ext.P16 postmortem certificate do also eminently support the ocular perception of PWs 4 to 8 given on oath before court. 16. To summarise, not a semblance of reasonable doubt is aroused in our mind on the crucial question that all the injuries suffered by the victim described in Ext.P6 postmortem certificate by PW13 must have been suffered by the deceased at the hands of the appellant and the co-accused, on that night within the residential building of the deceased. Common intention of the accused persons is also clearly revealed. We concur with and confirm the said conclusion of fact reached by the learned Sessions Judge. 17. That takes us to the next question as to what offence has precisely been established against the appellant on the facts proved. Evidence clearly shows that both the accused in furtherance of their common intention had indulged in culpable and contumacious physical acts against the deceased. The evidence available is insufficient for the Court to come to a precise conclusion as to which injury on the deceased was Crl.Appeal No.2033/01 10 caused by which accused. The safe conclusion that emanates from the facts proved is that both the accused together in furtherance of their common intention had caused the injuries found on the person of the deceased described in Ext.P6 postmortem certificate. 18. That takes us to the next question as to what the common intention of the miscreants was? The learned Public Prosecutor contends that their intention was to cause the death of the deceased. The learned counsel for the appellant submits that a dispassionate evaluation on the totality of facts must lead to the court to the irresistible conclusion that the offenders could not have been prompted by a common intention to cause the death of the deceased. The evidence reveals that such quarrels were common occurrences in the house of the deceased. No particular reason is advanced to show that on that date, the miscreants could have entertained any specific intention to cause the death of the deceased. That they did not use any weapon of offence is highlighted by the learned counsel for the appellant in support of his contention that the intention to cause death cannot be readily inferred. Even the manner of infliction of injury – kicking, is not suggestive of any real intention to cause Crl.Appeal No.2033/01 11 the death of the deceased, contends the learned counsel for the appellant. The learned counsel for the appellant further submits that according to the prosecution, the motive of the miscreants was to extract property/cash from the deceased. The said obnoxious purpose, even if it is assumed to be true, could not have been furthered in any manner by the miscreants by intending to cause the death of the deceased. The learned counsel for the appellant in these circumstances argues that the totality of circumstances must persuade a prudent mind to hold that the miscreants could not have been prompted by any intention to cause the death of the deceased. 19. The learned Public Prosecutor contends that the fact that the two miscreants had together come out of the house once or twice; that they had returned to the house to continue the assault as also words allegedly uttered by the miscreants in the course of the incident, must lead the Court to a safe and prudent inference that the intention was nothing short of causing the death of the deceased. The court below also appears to have accepted such contention. 20. We have very anxiously considered all the relevant inputs. The conduct of the appellant and the co-accused is, of Crl.Appeal No.2033/01 12 course, most obnoxious and worthy of condemnation. Her son and son in law had allegedly assaulted the deceased in furtherance of their common intention. Righteous indignation may be aroused. But a court of law has to consider all inputs dispassionately. So considered, we feel that a safe inference of intention on the part of the miscreants to cause the death of the deceased cannot certainly be drawn. At any rate, we are unable to accept and endorse the conclusion of the court below and the arguments of the learned Public Prosecutor that the common intention of the miscreants must definitely and certainly have been to cause the death of the deceased. We take note of the various contentions raised by the learned counsel for the appellant and are persuaded to agree that such a safe inference about the intention cannot be drawn notwithstanding the very objectionable and deplorable conduct of the appellant and the co-accused proved in this case. 21. We have no hesitation to agree that the deceased had succumbed to the injuries suffered by her – particularly injuries 1 to 3 and 16 to 19 described in Ext.P6 postmortem certificate, which we extract below: Crl.Appeal No.2033/01 13 “1. Abrasion 5X3 c.m on the right side of face just below outer angle of eye. 2. Abrasion 1.5X1 c.m on the right side of face 1.5 c.m below injury No.1. Underneath injury Nos.1 and 2, the tissues were contused over an area 8.7X0.8 c.m. 3. Contusion of whole thickness of right temporals muscle. Brain showed subarachnoid bleeding on both sides with signs of raised intra cranial tension. 16. Transverse fracture of body of sternum between the attachment of third and fourth costal cartilages. 17. Fracture of II to VIII ribs on the right side of chest at their angles. II to VII and IX ribs were also seen fractured on the back aspect with contusion 7X6X1 c.m on the back aspect of lower lobe of right lung. 18. Fracture of II to VIII ribs on the left side of chest at their angles and on the back aspect with corresponding laceration on the lower lobe of left Crl.Appeal No.2033/01 14 lung. Left chest cavity contained 300 ml of fluid blood and left lung seen partially collapsed. 19. Laceration 7X5X2.5 c.m on the back aspect of left lobe of liver. Abdominal cavity contained 800 ml of fluid blood.” 22. We are certainly of the opinion that those who inflicted the said injuries can be attributed with the knowledge, that they are likely by such acts to cause death. Therefore the offence of culpable homicide defined under Section 299 I.P.C is clearly established. 23. The crucial question is whether the offence of culpable homicide proved under Section 299 I.P.C gets aggravated to the offence of murder defined under Section 300 I.P.C on the totality of inputs available. The learned Public Prosecutor contends that under the first clause of Section 300 I.P.C, the offence would be one of murder. We have already taken note of the circumstance that a safe inference of intention to cause death cannot be drawn. 24. The next question is whether the injury caused was sufficient in the ordinary course of nature to cause death. We have gone through the evidence of PW13 and Ext.P6 postmortem Crl.Appeal No.2033/01 15 certificate. Specific evidence that any one of the 7 injuries narrated above, which, allegedly were non minor injuries, is sufficient in the ordinary course of nature to cause death, is not spoken to specifically by PW13. It is stated during cross examination that fracture of the ribs is sufficient to cause death. The crucial ingredient of clause thirdly of Section 300 I.P.C is not spoken to by the doctor PW13. The possibility of injuries 16 to 19 and the internal injury corresponding to injury No.3 having resulted indirectly by fall or contact with any hard and rough substance in the course of the incident cannot safely and effectively be ruled out. To sum up, the injuries which led to death are not proved to be sufficient in the ordinary course of nature to cause death. Specific intention to cause the internal injuries which are shown to have resulted is not specifically proved. In these circumstances, we are of the opinion that clause thirdly cannot also operate to bring the offence within the sweep of the offence of murder defined under Section 300 I.P.C. 25. As already stated, safe inference of knowledge that the injuries are likely to cause death can be assumed. We are, in these circumstances, satisfied that the appellant is entitled to the benefit of doubt on this crucial aspect as to whether the offence Crl.Appeal No.2033/01 16 would fall under Section 300 I.P.C. We reckon it safer to conclude that only the offence of culpable homicide not amounting to murder has been proved against the appellant. Consequently conviction entered is to be altered from Section 302 to 304(1) I.P.C. Intention to cause injuries which are likely to cause death is clearly established and therefore we hold that the offence proved is punishable under Section 304(1) I.P.C. 26. That takes us to the next question about the sentence to be imposed. Under Section 304(1) I.P.C, the possible sentences are, imprisonment for life or imprisonment of either description for a term which may extend to 10 years and fine. We take note of the totality of circumstances. The appellant is none other than the son of the deceased. His aged mother was attacked by the appellant and his brother in law. The unmarried son, the appellant, was certainly expected to give protection to his mother. It is such son who was acted in collusion with the son in law to attack the deceased. We are satisfied that the conduct of the appellant deserves condemnation in no unmistakable terms. The disapproval of the court must get reflected by imposition of an appropriate punishment. Notwithstanding the fact that we have come to the conclusion Crl.Appeal No.2033/01 17 that the appellant is liable to be punished only under Section 304 (1) I.P.C, we are satisfied that the maximum term sentence that can be imposed under Section 304 I.P.C deserves to be imposed on the appellant. We therefore hold that a sentence of rigorous imprisonment for a period of 10 years deserves to be imposed. The appeal succeeds only to the above extent. 27. In the result: a) This appeal is allowed in part; b) The verdict of guilty, conviction and sentence imposed on the appellant under Section 302 I.P.C is modified. He is found guilty, convicted and sentenced under Section 304(1) I.P.C to undergo R.I for a period of 10 years; c) The sentence of fine imposed and the default sentence are also upheld. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/