Antony Swamy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941 CRL.A.No.290 OF 2015(D)** **AGAINST THE JUDGMENT IN SC 105/2012 OF ADDITIONAL DISTRICT & SESSIONS COURT - VIII, ERNAKULAM** **CP 35/2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM** **CRIME NO.1299/2011 OF HILL PALACE POLICE STATION , THRIPUNITHURA** **APPELLANT/ACCUSED:** **ANTONY SWAMY AGED 33 YEARS S/O. NJANA PRAKASAN, MATHA KOVIL THERUVU, SULLUKUDY POST, THIRUMANOOR VIA, ARIYANNUR DISTRICT, TAMIL NADU,** **BY ADVS. SRI.V.JOHN SEBASTIAN RALPH SRI.BIMAL PRASAD SRI.K.J.JOSEPH (ERNAKULAM) SRI.V.JOHN THOMAS SMT.SANJANA R.NAIR** Crl.Appeal No.290/15 -:2:- ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY THE CI OF POLICE, HILL PALACE POLICE STATION, TRIPUNITHURA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, COCHIN-31** ## **BY SR PP SRI.ALEX M THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.6.2019, THE COURT ON 29.08.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.290/15 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the accused in SC No.105/2012 of the Additional District and Sessions Judge-VIII, Ernakulam by which he had been convicted and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- with default sentence of one year for having committed the offence u/s 302 of I.P.C. 2. The prosecution allege that the appellant stabbed the victim Bhasker on his chest with a knife and caused his death. The incident occurred on 11/6/2011 at 11.15 p.m. 3. In order to prove the case, prosecution examined PW1 to PW15 and marked Exts.P1 to P20. MO1 to MO8 were the material objects identified at the instance of the prosecution. Defence relied upon Ext.D1 letter and third party documents were summoned and marked as Exts.X1 and X2. 4. The case came to light on the basis of Ext.P1 First Information Statement (FIS) furnished by PW1 at 12.30 a.m on 12/6/2011 on the basis of which PW9, the Sub Inspector of Police, Thripunithura Police Station registered Crime No.1299/2011. Crl.Appeal No.290/15 -:4:- PW15, Circle Inspector of Police, Thripunithura took over investigation and conducted the inquest of the dead body of Bhasker on 12/6/2011 at the Taluk Hospital. Ext.P2 is the inquest report and the witness to Ext.P2 is PW3. Postmortem was conducted by PW5, the Assistant Professor and Deputy Police Surgeon of Forensic Medicine, Medical College Hospital, Alappuzha. He issued Ext.P4 postmortem certificate. In his evidence, he narrated the following as ante-mortem injuries:- _“1. Incised wound 2.5 x 1 cm oblique over front of left side of chest. Lower inner sharp end 20 cm below collar bone and 6.5 cm to the left of midline. The wound entered the chest cavity through the 6[th] intercostal space partially cutting upper border of 7[th] costal cartilage, cut the pericardium and left ventricle of Heart at apex. Ventricular injury was 2 x 0.5 cm. Pericardial cavity contained 60 gms of blood clots and 70 ml of fluid blood. Left chest cavity contained 600 gm of blood clots and 200 ml of fluid blood. Chest wall thickness was 2.5 cm. Total minimum depth was 8 cm. The wound was directed upwards, backwards and to the left. Left lung was intact._ _2. Abrasion 0.5 x 0.5 cm front of right knee.”_ According to him, cause of death of the deceased was due to stab injury on the chest and the said injury is fatal in nature. He also opined that injury No.1 can be caused by using MO1 knife. From the aforesaid evidence, it is clear that death of Bhasker was on Crl.Appeal No.290/15 -:5:- account of a homicide and the only question is as to who committed the murder. 5. We will now consider the other evidence and circumstances involved in the case. As already stated, PW1 has given FIS. In the FIS, he had given a statement to the police on 12/6/2011 at 00.30 hours. He deposed that on the previous day, at about 11.15 p.m, Vijayaraj who is working with him called him over mobile and stated that his friend Bhasker was stabbed by Antony, who is from Tamil Nadu in front of Balakrishnan's shop with a knife and an autorickshaw is to be arranged for taking him to hospital. Immediately he took his motorbike and reached the scene. What he saw was that Bhasker was lying with a stab injury on his abdomen and he was in a pool of blood. A towel was tied on his stomach. He called his friend Unnikrishnan over phone and asked him to come with an autorickshaw. Unnikrishnan came in an auto and he along with two other persons took Bhasker in the auto to Government Hospital, Thripunithura. At 12.05 hours, Doctor examined Bhasker and declared that he is dead. He further deposed that Bhasker questioned Antony while Antony was shouting bad words in front of Antony's room. Antony was a Crl.Appeal No.290/15 -:6:- worker in a butcher shop at Thripunithura and he ran away with the knife. Apparently PW1 is not an eye witness. He gave evidence in accordance with what he had stated in his FIS. 6. PW2 is Unnikrishnan who deposed that on a call received from PW1 stating that a Tamilian is injured with a stab under the Irumpanam Railway overbridge, he had gone to that place with his auto. PW1 and two-three other Tamilians took the injured in his auto and he was taken to Government Hospital, Thripunithura. On examining him, Doctor opined that he is no more. 7. PW4 is a witness to Ext.P3 scene mahazar. He stated that Bhasker was residing in a room adjacent to the shop of Balakrishnan. In front of the room, there was a pool of blood. 8. PW6 Vijayaraj is an occurrence witness. He deposed that the incident occurred on 11/6/2009 by about 11.15 p.m. He is also a person residing under the railway overbridge at Irumpanan. He came after work, had a bath and proceeded to give the rent to Ravi chettan who is the owner of the room. After paying rent, he went to Rajesh Hotel at Manakkapadi and had his meals and came back to his room which was about at 10 – 10.30 Crl.Appeal No.290/15 -:7:- p.m. He knew the accused whom he identified and he knew that he was from Thanjavoor District in Tamilnadu. When he came to his room, accused was also in his room. Accused went in front of the room of Bhasker and abused him. Bhasker was residing in a room in the nearby building. Bhasker came out of the room and asked the accused not to abuse him. Bhasker brought the accused to PW6's room. Accused entered his room. He was sitting in a mat. Accused again proceeded to Bhasker's room and started abusing. Bhasker came out and pushed him and Bhaskar went inside his room. Accused came and sat in PW6's room for quite some time. Thereafter he took a knife from his room and went out. PW6 went behind. Accused went and knocked the door of Bhasker's room. On hearing the sound, Daniel, who was in the room came out and asked him not to have any fight. Without hearing the same, he pushed aside Daniel. Bhasker came out of the room and at that time, accused inflicted an injury with a knife on Bhasker's chest. Bhasker shouted calling his mother and sat down. Blood oozed out from his body. Daniel took a towel belonging to Bhasker and it was tied on his chest. Bhasker cried aloud. He proceeded to get an auto. He did not get an auto. He Crl.Appeal No.290/15 -:8:- called PW1 over phone and he came in a motorbike and PW1 called for an auto in which Daniel, David and PW1 took him to the hospital. He called another auto and proceeded to the hospital. PW1 told him that Bhasker died. After inflicting injury on Bhasker, accused ran towards the railway line with the knife. He identified the knife as MO1 and the kaily of accused as MO2. He identified MO3, the kaili which Bhasker was wearing at that time and the towel which was tied on him was marked as MO4. Though this witness was cross-examined at length, nothing has been brought out to discredit his evidence. One line of cross examination was that there was a scuffle with accused and Bhasker and the accused also suffered injuries. Witness says that there was no such incident. 9. PW7 is a civil police officer who is a witness to Ext.P6 mahazar by which the kaily and baniyan of the accused were taken and given to the Circle Inspector of Police. The kaily is marked as MO2 and the baniyan as MO5. 10. PW8 is a witness to the recovery of MO1 knife. Ext.P7 is the recovery mahazar. He deposed that he saw the accused taking a knife and giving it to the Circle Inspector of Police. Crl.Appeal No.290/15 -:9:- 11. PW10 was the Scientific Assistant (Documents) of the Assistant Crime records Bureau, Kochi City during the relevant time. She collected samples of blood in a cotton gauze from the scene of occurrence. It was packed, labelled and handed over to the Circle Inspector of Police for onward transmission to FSL, Thiruvananthapuram for chemical examination. The cotton gauze is marked as MO6. 12. PW11, Daniel is another eyewitness to the incident. He also spoke in accordance with the evidence given by PW6. There is nothing in the cross-examination to discredit the said witness. 13. PW12 Dr.C.V.Jose, was the Assistant Surgeon, Taluk Hospital, Thripunithura on 12/6/2011. He deposed that he had examined the accused at 9.30 p.m on the said day and issued Ext.P9. It was noticed that the accused was having an abrasion in the left right knee joint and left shoulder joint. He was having mild injuries to the eye. He identified the accused. During crossexamination he stated that it is possible that the injuries in the right eye can be caused by assault. He further stated that the accused was having respiratory infection. 14. PW13 has prepared Ext.P10 sketch of the scene. PW14 Crl.Appeal No.290/15 -:10:- was the Assistant Director, State Forensic Laboratory, Thiruvananthapuram. He produced Ext.P11 report. He stated that item Nos.1, 2 and 7 contained human blood belonging to group 'O', item 1 is a kaily, item 2 is a bath towel and item 7 is a piece of white cotton gauze with blood stains. This belongs to the deceased. He also deposed that item 6 contained sample human blood. Item 4 is a sleeveless baniyan and item 5 is a rusted metallic knife. He reported that it contained blood, which was insufficient for determining the origin and there was no blood in item no 3 which is a lungy of the accused. 15. PW15 is the investigating officer who had deposed to the manner in which the investigation was conducted and the recovery of the material objects based on the confession statement of the accused. 16. Defence examined DW1. He deposed that the accused came a few days before the incident and he was residing in the room of PW6. On Saturday and Sunday, they used to drink liquor and they used to play cards. Between 8 and 9 pm, they used to go for sleep. He slept at 8.30-9.00 p.m and between 10.30 and 11.00 at night, he heard a sound and got up. He saw some Crl.Appeal No.290/15 -:11:- persons quarrelling in front of Bhasker's room. David was inside Bhasker's room. There was a fight between PW6, PW11, Bhasker and the accused. Bhaskar caught hold of the head of accused and hit on the wall. He started bleeding from his nose. At that time, PW6 went and took a knife and inflicted injury on Bhasker. He got afraid and went to his room. After some time, when he came out, he did not see any one and he was told that they have gone to hospital. He went and slept in his room. In the morning, he mentioned the above matters to the _mestheri_ . He was asked to go home and he was given `500/-. He went to hospital, saw Bhasker's dead body and went home. He was cross examined and the prosecution version is that he was giving false evidence. He further stated that he had informed these matters to the police. 17. DW2 has produced Ext.X1 which is a muster roll. Details of temporary staff were produced as Ext.X2 subject to objection. It was a computer print out. He deposed that a person by name Krishnakumar has not worked in the company. During cross-examination, he stated that there are about 20 contractors in BPCL and Ext.X2 was not complete. Krishnakumar is PW8 who claims to be a witness to the seizure mahazar for seizure of knife. Crl.Appeal No.290/15 -:12:- 18. From the aforesaid evidence of PW1, PW2, PW6 and PW11, it is rather clear that the incident happened as spoken to by PW6 and PW11. PW1 and PW2 had arranged the victim to be taken to the hospital immediately after the incident. The version of DW1 that Bhasker had caught hold of the accused and his head was hit on the wall and blood came out of the nose appears to be not believable. If that was the situation, he would have suffered more injuries than what is evident from Ext.P9. Evidence of PW6 and PW11 is without any contradiction or material omission and there is no reason why they should state falsehood before Court. They stood the test of cross-examination. Therefore DW1's version is totally created only for the purpose of supporting the accused. The injury allegedly sustained by the accused are minor in nature and may not be on account of the scuffle as such. However, the evidence of PW6 itself would show that on one occasion Bhasker had pushed the accused and he was forced to come and sit in his room. Therefore, the aggressor was always the accused. He was abusing Bhasker and though others interfered, he did not stop the same. Ultimately he took a knife from PW6's room and inflicted a fatal injury on the victim. Crl.Appeal No.290/15 -:13:- The Court below had also taken into consideration the aforesaid facts and had convicted the accused. The FIS was given immediately after the incident. There is no delay in giving the FIS wherein PW1 had narrated the information which he had at the relevant point of time. On an over all consideration of the aforesaid facts, we do not think that Court below had committed any error in arriving at the aforesaid finding of conviction. 19. The evidence of eyewitnesses is further corroborated by seizure of the knife as per Ext.P7 seizure mahazar. It was based on a confession statement of the accused that he had concealed the knife under the railway over bridge at Irumpanan and that he will show the place if he is taken to that place, that the knife was recovered. Recovery was effected on 13/6/2011 at 9.30 p.m. The accused was arrested on 12/6/2011 at 8.15 pm and it was on questioning that he had given the confession statement. Though it is contended by the defence that PW8 witness had been planted, there is no material to substantiate the same. DW2 had been examined to prove that PW8 was not working in BPCL. In his evidence, PW8 has stated that he was working in BPCL and DW2 has stated that there is no person by Crl.Appeal No.290/15 -:14:- name Krishnakumar working in BPCL. We do not think that the aforesaid discrepancy is material in any form. Even assuming that he was not working in BPCL, still, his evidence does not lack credibility. He had clearly stated how the accused had shown the place where the knife was concealed and he had taken it himself and he has signed Ext.P7 seizure mahazar. The defence has not asked him as to who was the employer. In the absence of any material to accept whether the said statement was correct or not, it can only be assumed that he was not a permanent worker of BPCL and the register of workers given by the contractor was not even certified. 20. Learned counsel for the appellant submits that even assuming that the oral testimony of PW6 and PW11 are to be believed, the fact that the accused had suffered injuries itself would show that there was a scuffle between them and in the result, the injury was suffered by the victim. The accused had also filed a statement u/s 313(5) of Cr.P.C. wherein he stated in accordance with what DW1 had stated that PW6 took a knife and tried to help him to come out of the clutch of Bhasker and in the meanwhile Bhasker was injured by Vijayaraj (PW6). Therefore this Crl.Appeal No.290/15 -:15:- is a case in which accused totally denied his involvement in the crime. But as already stated, evidence of PW6 and PW11 which is supported by the recovery of MO1 knife clearly proves the involvement of the accused. He is a person who had shown the knife to the police which was concealed under the over bridge. Though the origin of blood stains could not be seen from the knife that was recovered, still the recovery of the material object effected in terms of S.27 of the Evidence Act and the factum of concealment of the murder weapon stands proved. Learned counsel for the appellant further argued that even assuming that this is a case in which the accused is found to have committed the overt act, still it is only an attempt in the form of a right of private defence. But the evidence of PW6 ad PW11 categorically indicates that accused was the aggressor to the crime. 21. Even according to the accused, he was not having any weapon and the weapon was taken by PW6. In order to invoke the right of private defence, the accused will have to admit that he had committed the overt act. In so far as he has not admitted having committed the overt act, that question does not arise. The accused is entitled for taking contradictory defence as well. But, Crl.Appeal No.290/15 -:16:- in this case, what we have found from the factual circumstances and the evidence on record is that the accused had taken the knife from the room of PW6 and had gone to the room of Bhasker and inflicted injury on him. He specifically abused Bhasker and even though Daniel was also in the room, without heeding to what Daniel stated, he inflicted a stab on Bhasker. 22. The next argument raised by the learned counsel for appellant is that even assuming that the offence is committed, it may not attract an offence u/s 302 of I.P.C. 23. Learned Public Prosecutor relied on the judgment of the Apex Court in _**State of Rajsthan v. Ram Kailash alias Ram Vilas**_ [(2016) 4 SCC 590]. In this case, the accused was convicted for offence u/s 302 of I.P.C. and in an appeal, the High Court altered the same to 304 Part I of I.P.C. The Apex Court while considering the said case having referred to the earlier judgment of the Apex Court in _**State of Andhra Pradesh v. Rayavarapu Punnayya and another**_ (AIR 1977 SCC 45) held at paragraphs 10 to 12 as under:- _“10. Keeping in view the above test and on the perusal of the Trial Court and the High Court judgment and the evidences on record, it is not a disputed fact as to whose fire shot resulted in the death of the deceased. The only_ Crl.Appeal No.290/15 ## -:17:- _question which is to be examined here is whether the offence committed by the respondent is culpable homicide amounting to murder punishable under Section 302 or culpable homicide not amounting to murder punishable under Section 304 Part-I. Here, the intention on the part of the respondent-accused in causing bodily injury as is likely to cause death is also not a disputed fact. The only thing which is to be tested is whether the bodily injury is covered under either of the Clauses of Section 300 the Indian Penal Code._ _11. We are, therefore, of the view that the High Court has further erred in not taking into consideration Section 301, IPC in forming its opinion before converting the sentence from Section 302 to Section 304 Part-I. Moreover, in view of the fact that respondent-accused knew that his act of shooting the deceased person is likely to cause death of that person to whom harm is caused. It cannot be believed that respondent-accused did not know about the likelihood of causing death, though, he may not know as to whom he is causing bodily harm, but his act in totality and in the light of evidences on record clearly prove the ingredients of Section 300, IPC._ _12. For the reason aforesaid, we are of the view that the judgment of the High Court converting the sentence from Section 302 to Section 304 Part-I, IPC cannot be sustained. In the light of the above, this appeal is allowed and the judgment of the High court is set aside and restore the conviction and sentence passed by the Trial Court under Section 302, IPC read with other sections of the Arms Act.”_ 24. Bhasker died on account of a single injury. The wound Crl.Appeal No.290/15 -:18:- entered the chest cavity, partially cutting upper border of 7[th] costal cartilage. It cut the pericardium and left ventricle of heart at apex. The wound was directed upwards, backwards and to the left. Apparently, it was a fatal injury. Learned counsel for the accused submits that there is no evidence to prove that the injury was sufficient in the ordinary course to cause death and no such evidence is forthcoming when medical evidence is adduced before Court. True that the Doctor had not stated in his evidence that injury No.1 was sufficient in the ordinary course to cause death. But while considering a case of culpable homicide, the court will have to evaluate the entire evidence and arrive at its own conclusion. Even assuming that the Doctor had opined that the injury is likely to cause death or would cause death in the ordinary course of nature, still it is for the Court to assess the evidence and to arrive at a proper conclusion. While considering the question whether the offence is murder or culpable homicide not amounting to murder, the first question to be considered is whether the accused had done an act which has caused the death of the other person. This is a case in which the injury inflicted by the accused has caused death of the deceased. The Crl.Appeal No.290/15 -:19:- next question to be considered is whether the facts proved by the prosecution would bring the case within the ambit of any of the four clauses coming under S.300 of I.P.C. If the answer is in the negative, the offence would be culpable homicide not amounting to murder and punishable under the first or second part of S.304. If the answer is positive and it also comes within any of the exceptions enumerated in S.300, the offence would still be culpable homicide not amounting to murder punishable under first part of S.304 of I.P.C. Therefore, what was the actual situation arising in the case relating to the manner in which the injury was inflicted and the intention of the accused requires to be considered. The injury, no doubt is fatal which resulted in death of the deceased, though he was taken to the hospital immediately after sustaining the injury. The incident happened at 11.15 p.m and he was taken to the hospital by 00.05 hours and found dead. Therefore, the injury by itself was fatal and it was enough in the ordinary course for a person to die. The injury had pierced into the heart muscles and it had cut the pericardium and left ventricle. Even the ventricular injury was 2x0.5 cms. In order to attract S.300 thirdly, if the act is done with the intention of Crl.Appeal No.290/15 -:20:- causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, it would become culpable homicide amounting to murder. This is a case in which the injury inflicted was so fatal, straight towards the heart, which even on the available evidence is sufficient to arrive at a conclusion that the accused intended to inflict an injury which is sufficient in the ordinary course of nature to cause death. We gain support to take this view in the light of the judgment of the Apex Court in _**Virsa Singh v. State of Punjab**_ (AIR 1958 SC 465). In the light of the aforesaid judgment, we do not think that the accused is entitled to contend that the offence may fall only under 304 of I.P.C The sentence is commensurate to the offence charged. The appeal is, hence, dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **N.ANIL KUMAR** Rp //True Copy// **JUDGE** PS to Judge