Ayyappadas and Kumary v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **& THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 31ST DAY OF JANUARY 2014/11TH MAGHA, 1935** ## **CRL.A.No. 1429 of 2009 ( )** **--------------------------AGAINST THE ORDER/JUDGMENT IN SC 528/2005 of D.C.& SESSIONS COURT,THODUPUZHA DATED 01-07-2009** ## **APPELLANT(S)/ACCUSED NOS.1 & 2:** **------------------------------------------------------------** **1. AYYAPPADAS, S/O VELAYUDHAN, THUNDANVILAYIL VEEDU, KAICHUNDI BHAGOM PAINKULAM VILLAGE, KANYAKUMARI DISTRICT.** **2. KUMARY, W/O.SELVAM, PRIYA BHAVAN, NELLIKKADAU BHAGOM, 200 ACRES BAISONVALLEY VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K. MOHANAN & B. KEMAL PASHA, JJ.** ........................................................................... Crl.Appeal No. 1429 of 2009 ............................................................................ Dated this the 11[th] day of February, 2014 ## **J U D G M E N T** ## _**Kemal Pasha, J.**_ The 1[st] accused in S.C.No.528/2005 of the Sessions Court, Thodupuzha, who stands convicted under Sections 302 and 307 IPC, and Sections 341, 294(b) and 447 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of ₹10,000/-, in default, to undergo simple imprisonment for six more months under Section 302 IPC, imprisonment for seven years and to pay a fine of ₹5,000/-, in default, to undergo simple imprisonment for three more months under Section 307 IPC, imprisonment for one month and to pay a fine of Crl.A.1429/2009 -: 2 :- ₹500/-, in default, to undergo simple imprisonment for 15 days under Section 341 r/w 34 IPC, imprisonment for three months and to pay a fine of ₹500/-, in default, to undergo simple imprisonment for 15 days under Section 294(b) r/w 34 IPC and imprisonment for three months under Section 447 r/w 34 IPC, along with the 2[nd] accused, who is his sister, in the said case, who stands convicted under Sections 294 (b), 341 and 447 r/w 34 IPC and sentenced to undergo imprisonment for one month and to pay a fine of ₹500/-, in default, to undergo simple imprisonment for 15 days under Section 341 r/w 34 IPC, imprisonment for three months and to pay a fine ₹500/-, in default, to undergo simple imprisonment for 15 days, under Section 294(b) r/w 34 IPC and imprisonment for three months under Section 447 r/w 34 IPC, have come up in appeal. 2. The prosecution case is that on 23.10.2003 at 10.15 a.m., both the appellants, in furtherance of their Crl.A.1429/2009 -: 3 :- common intention of committing the murder of deceased Stanley and PW2 Anu Revi, trespassed into the residential compound of the deceased, wrongfully restrained the deceased, abused him in filthy language, and the 1[st] appellant inflicted a fatal injury on his abdomen by stabbing with MO1 knife. On getting the stab, the deceased collapsed. On seeing the incident, PW2 rushed to the spot and attempted to lift Stanley up. Then immediately, the 1[st] appellant stabbed PW2 also with MO1 knife, thereby inflicting a grave injury, with the intention of committing the murder of PW2 also. The deceased and PW2 were immediately taken to the hospital; however, the deceased died on the way to the hospital. PW2 recovered after prolonged medical treatment at the hospital as inpatient. 3. On the same day, at 3 p.m., PW1 furnished Ext.P1 First Information Statement before PW11 Circle Inspector of Police, Rajakkad, on the basis of which, PW11 Crl.A.1429/2009 -: 4 :- registered Crime No.212/03 of the Rajakkad Police Station, through Ext.P7 FIR, for the offences punishable under Sections 294(b), 302, 307 and 447 read with Section 34 IPC. PW13 Circle Inspector of Police, Adimaly, took over the investigation. On 24.10.2003, he conducted inquest of the body of the deceased and prepared Ext.P2 inquest report and seized MOs.6 to 9. Thereafter, he sent the body for postmortem examination to the Medical College Hospital, Kottayam. 4. PW13 reached the scene of occurrence, and prepared Ext.P4 scene mahazar. He placed the appellants under arrest on 25.10.2003, and seized MO10 series and MO11. MO3 saree and MO5 blouse worn by the 2[nd] appellant at the time of the incident were also seized through Ext.P10 mahazar. 5. On the basis of the information furnished by the 1[st] appellant and as led by him, PW13 seized MO1 knife and Crl.A.1429/2009 -: 5 :- MO2 shirt worn by the 1[st] appellant, at the time of the incident, through Ext.P5 mahazar at 12 noon on 26.10.2003. 6. On the side of the prosecution PWs.1 to 14 were examined and Exts.P1 to P13 were marked. On the side of the defence, Exts.D1 series, D2 series and D3 were marked which are portions of statements of PW4 recorded under Section 161 Cr.P.C. MOs1 to 12 were identified. 7. After the evidence of the prosecution, the appellants were examined under Section 313 Cr.P.C. They denied the incriminating circumstances appeared in the evidence against them. The 1[st] appellant contended that while he was returning after visiting the house of the deceased, the deceased and PW2 came in front of him, restrained him, and entered into a quarrel with him. PW2 was holding a knife, and it was with that knife, the deceased sustained injury. It is also contended that there occurred a push and pull between him and PW2 and with that knife Crl.A.1429/2009 -: 6 :- itself, PW2 also sustained injury, and that he did not know anything regarding the knife produced before the court below. He is innocent in this case. The prosecution and the appellants were heard. As no grounds were made out to acquit the appellants under Section 232 Cr.P.C. they were called upon to enter on their defence. No defence evidence was adduced to counter the prosecution case. The court below found the appellants guilty of the offences, convicted them thereunder, and sentenced them as aforesaid. 8. Heard the learned Senior Counsel Sri.P.Vijayabhanu for the appellants and the learned Public Prosecutor Sri.Roy Thomas for the respondent. The learned Senior Counsel for the appellants has argued that there is no sufficient evidence to connect the appellants with the offences alleged against them and therefore, the conviction and sentence passed by the court below are liable to be set aside and the appellants are entitled to be acquitted. _Per_ Crl.A.1429/2009 -: 7 :- _contra_ , the learned Public Prosecutor has vehemently supported the conviction and sentence passed by the court below and argued that there is absolutely nothing to interfere with the impugned judgment. 9. PW1 is the wife of PW2. Deceased Stanley was the son of the younger sister of PW2's mother. PW1 and PW2 were also staying at the house of the deceased. On the date of incident, at 8 a.m., the deceased and PW2 went to their cardamom plantation adjoining the house of the deceased, for agricultural operations. The deceased was doing works at the lower area of the property and PW2 went to the upper part of the land. At 10.15 a.m. PW1 went to the place where Stanley was working for calling him for breakfast. She could find that appellants talking with the deceased. Then, she could hear the 2[nd] appellant abusing the deceased. The 2[nd] appellant even abused mentioning the names of the father and mother of the deceased. Then, Crl.A.1429/2009 -: 8 :- the deceased told the 2[nd] appellant not to abuse his mother. The 2[nd] appellant caught on the shirt of the deceased and asked him as to what he would do, in case his mother was abused. 1[st] appellant, by catching on the neck of the deceased, took MO1 knife from his pants' pocket and stabbed on the abdomen of the deceased with MO1. PW1 screamed. Immediately, her husband PW2 and both the younger sisters of the deceased rushed to the spot. The deceased collapsed on getting the stab. When PW2 attempted to lift the deceased up from the ground, the 1[st] appellant stabbed on the right side of the abdomen of PW2 also, with the very same knife. Thereafter, both the appellants ran away from the spot. The deceased and PW2 were taken to the hospital. The deceased died on the way to the hospital. PW2 was taken to the Medical College Hospital, Kottayam. 10. According to PW1, the husband of the 2[nd] Crl.A.1429/2009 -: 9 :- appellant, who is the brother-in-law of the 1[st] appellant is the uncle of PW2. He obtained the ear-studs of PW1 for pledging it. But, he did not care to redeem the same and to return it. When PW2 demanded him to redeem the same and to give it back, there occurred a quarrel between him and PW2. In that quarrel the husband of the 2[nd] appellant, Selvan sustained injury and was hospitalised, thereby, the 2[nd] appellant became in inimical terms with PW2. 11. PW1 furnished Ext.P1 F.I.Statement before PW11, Jose, at the Rajakkadu Police Station. Her versions in Ext.P1 regarding the incident are the same as those in her evidence as PW1 before the court below. The contents of Ext.P1 clearly corroborate her evidence. Even though PW1 was subjected to searching cross examination, nothing could be brought out to impeach her credit or impair her credibility. 12. PW2 is the husband of PW1. According to him, Crl.A.1429/2009 -: 10 :- he along with his wife PW1 were residing at the house of the deceased. While he was working at the upper part of the property at 10.15 a.m. on 23.10.2003, he heard some sounds from the lower portion of the property where the deceased was engaged in work. When he proceeded to that spot he could see his wife, PW1 and the appellants standing there. The 2[nd] appellant abused the deceased by mentioning the name of the mother of the deceased. The 2[nd] appellant caught hold of the deceased by his shirt collar. The 1[st] appellant stabbed on the abdomen of the deceased with MO1 knife. The deceased collapsed. PW2 rushed to the spot and attempted to lift the deceased up. Immediately, the 1[st] appellant stabbed on the abdomen of PW2 with the very same knife thereby, PW2 also sustained injury. Both the younger sisters of the deceased were also present there, along with PW1. Then, both the appellants ran away from the spot. According to PW2, the handle of Crl.A.1429/2009 -: 11 :- MO1 was in green and red colour. As the intestine of the deceased protruded out, that portion of his body was tied around with a _dothi._ Many persons gathered there. Both the deceased and PW2 were taken to Adimaly hospital, and on the way, the deceased died. PW2 was taken to the Medical College Hospital, Kottayam. 13. PW2 identified MO1 knife, MO2 as the shirt worn by the 1[st] appellant, MO3 as the saree worn by the 2[nd] appellant, and MO5 as the blouse worn by the 2[nd] appellant at the time of the incident. 14. According to PW2, the brother-in-law of the 1[st] appellant had pledged the ear-studs of PW1; but it was not returned. When it was demanded back, there occurred a quarrel, followed by beatings, between him and his uncle. Thereafter, the parties were in inimical terms with each other. Even though PW2 was also subjected to searching cross examination, nothing could be brought out in order to Crl.A.1429/2009 -: 12 :- impair his credibility or impeach his credit. The versions of PW2 regarding the incident clearly corroborate the versions of PW1 as well as the contents of Ext.P1. 15. PW5 is the employer of the 2[nd] appellant and her husband Selvan. He knows the deceased as well as PW2, and also PW1, who is the wife of PW2. According to him, he had mediated in a dispute between Selvan and PW2 relating to a dispute between them regarding the pledging of the ear-studs of PW1 by Selevan. A quarrel had occurred in between PW2 and Selvan on account of the same and Selvan had sustained injuries. Further, according to him, he was informed over the phone by his son that the deceased and PW2 had quarreled with Selvan, whereby, Selvan had sustained injuries. Selvan was taken to Baselious Hospital and was treated there as inpatient. There is absolutely nothing to disbelieve the versions of PW5. According to PW5, even after the discharge of Selvan from the hospital, Crl.A.1429/2009 -: 13 :- both Selvan and the 2[nd] appellant continued to reside at the house of PW5. The defence taken by the appellants while cross examining PW5 that, PW5 had deliberately made the appellants scapegoats in order to save PW2, is not at all believable. 16. According to PW13 investigating officer, the 1[st] appellant furnished Ext.P5(a) statement as follows: _“I have placed the shirt at the house of my brother-inlaw, Selvan at Nellikkad, and the knife inside the roof of that house. I will take and produce the shirt and knife, if I am taken there_ .” 17. On the basis of Ext.P5(a) disclosure statement and as led by the 1[st] appellant, PW13 reached the said house and seized MO2 shirt and MO1 knife taken and produced by the 1[st] appellant, through Ext.P5 mahazar. Ext.P5(a) contains the authorship of concealment and it qualifies all the necessary ingredients to constitute a statement admissible under Section 27 of the Indian Crl.A.1429/2009 -: 14 :- Evidence Act. It stands proved that both the appellants were arrested at 5 p.m. on 25.10.2003. 18. Ext.P12 certificate of chemical analysis reveals that MO1 knife and MO2 shirt of the first appellant were stained with human blood. MO4 and MO9 clothes worn by the deceased were also stained with human blood. Ext.P5 (a) and Ext.P12 clearly corroborate the evidence of PW1, PW2 and the contents of Ext.P1. 19. Now, we shall deal with the cause of death of the deceased. On 24.10.2003, while PW10 was working as Assistant Professor of Forensic Medicine at Medical College Hospital, Kottayam, he conducted the postmortem examination on the body of the deceased aged 15 years, and issued Ext.P6 postmortem certificate which bears his signature. He has noted the following antemortem injuries on the body of the deceased:- _“Incised penetrating wound 3.5 x 1.5 cm oblique on the front of abdomen. Its upper Lt_ Crl.A.1429/2009 -: 15 :- _broad end, 8.5 cm above umbilicus in the mid line. The other end is pointed. Wound entered the abdominal cavity. Anum fixed the stomach in the pylorus. Cut open the aorta and terminated on the Lt side of first lumbus vertebra. Wound was directed backwards, downwards, and to the Lt, for a minimum depth of 4 cms. Peretoneal cavity and retroperetonial tissues, contained about one litre of blood.”_ 20. According to PW10 the said injury could be inflicted by stabbing with MO1. His opinion as to the cause of death of the deceased is that the deceased died due to the stab injury on the abdomen involving stomach and aorta. In fact, PW13 was not asked by the prosecution whether the said injury was necessarily fatal or was sufficient in the ordinary course of nature to cause the death. Such a lapse on the part of the prosecution does not assume any importance in this case, when it has been revealed that the aorta was cut open. Any further evidence is not required to Crl.A.1429/2009 -: 16 :- conclude that such an injury is necessarily fatal. There cannot be any better opinion than the one expressed by PW10 regarding the cause of death of the deceased. 21. PW6, while working as Assistant Surgeon at Taluk Headquarters Hospital, Adimaly, examined PW2 aged 22 years on 23.10.2003 and issued Ext.P3 wound certificate which bears his signature. The history and the alleged cause of injury was noted as _'alleged assault by Das by stabbing with knife'_ . It has to be noted that the name of the first appellant is Ayyappadas. Evidently, PW2 might have referred the 1[st] appellant by naming him a Das. PW6 has noted ' _Deep penetrating L/W 2.5 x 6 cm over the Rt. flank, 6 cm over the Rt. iliac crest'_ . According to PW6, the said injury could be inflicted by stabbing with MO1. Similarly, the versions of PW6 supported by the evidence of PW2, clearly reveal that PW2 was stabbed by the 1[st] appellant, and thereby PW2 sustained an injury. Crl.A.1429/2009 -: 17 :- 22. There is no challenge regarding the cause of death of the deceased. The only challenge is with regard to the cause of injury which resulted in the death of the deceased. The further challenge is with regard to the injury sustained to PW2. According to the appellants, the injury sustained to the deceased as well as the injury sustained to PW2 had occurred in the course of the scuffle, as the knife which was there in the hands of PW2 came into contact with those portions of the body of the deceased and PW2. In the light of the concrete evidence discussed above, which are fully corroborated by Ext.P5(a) information admissible under Section 27 of the Indian Evidence Act and the consequent recovery of MO1 at the instance of the 1[st] appellant, the aforesaid defence taken up by the appellants is not at all believable. 23. From the evidence as a whole, it has clearly come out that the appellants, in furtherance of their common Crl.A.1429/2009 -: 18 :- intention, committed trespass into the house and property of the deceased for committing the offences. Further, they wrongfully restrained the deceased, and also abused the deceased and his mother in filthy language. It clearly stands proved that both the appellants have committed the offences punishable under Sections 294(b), 341 and 447 IPC r/w Section 34 IPC. 24. It stands proved that the 1[st] appellant has caused the death of the deceased. The learned Senior Counsel for the appellants has lastly argued that as the incident, which had resulted in the death of the deceased had occurred in the spur of a moment, without any premeditation on the part of the 1[st] appellant, there could not have been any intention on the part of the 1[st] appellant to cause the death of the deceased. It was also argued that, as there was only a single knife blow without any premeditation, in the heat of passion, the cause of death of the deceased will come Crl.A.1429/2009 -: 19 :- within Explanation 4 of Section 300 IPC and therefore, it is 'culpable homicide' at the most punishable under Section 304 Part II IPC. 25. The learned Senior Counsel has invited our attention to the decisions of the Apex Court in _**Sudhakar v. State of Maharashtra** [(2012) 9 SCC 725]_ , _**Bala Baine Linga Raju v. State of Andhra Pradesh** [(2009) 6 SCC 706]_ , _**Sangharaj Bhogappa Kamble v. State of Maharashtra** [2010 (13) SCC 651]_ and _**Gurmukh Singh v. State of Haryana** [(2009) 15 SCC 635]_ and argued that in the above said cases a single injury was caused without any premeditation and in the heat of passion, and therefore, the act of causing the death in those cases were categorised as 'culpable homicide not amounting to murder' as the same will come within Explanation 4 of Section 300 IPC, which is punishable under Section 304 Part II IPC. 26. The learned Public Prosecutor has invited our Crl.A.1429/2009 -: 20 :- ## attention to the decision of the Apex Court in _**Virsa Singh v. State of Punjab** [AIR 1958 SC 465]_ wherein it was held: _“It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.”_ 27. It is true that the 1[st] appellant had inflicted only a single knife blow on the body of the deceased. At the same time, the said injury was very serious and was necessarily fatal as it cut the aorta. It cannot be said that the incident had occurred in the spur of a moment. There was motive on the part of the 1[st] appellant and the motive stands proved. Crl.A.1429/2009 -: 21 :- Further, the circumstances clearly reveal that just prior to the incident, both the appellants had visited the house of the deceased, evidently in search of the deceased. When the appellants could not find the deceased at his house, then they trespassed into the property of the deceased where he was working. The first appellant had kept MO1 knife in his pants' pocket, and he inflicted the fatal injury on the body of the deceased. When PW2 rushed to the spot, attempting to lift the deceased up, the first appellant stabbed PW2 also thereby causing a serious injury to PW2. The subsequent conduct of the 1[st] appellant has to be taken note of under Section 8 of the Indian Evidence Act. It is not a case wherein he ran away from the spot after inflicting the injury on the body of the deceased, whereas, he intentionally inflicted another stab injury on PW2 also, when PW2 came and attempted to lift the deceased up. It cannot be said that the said injuries were caused on the deceased by the first Crl.A.1429/2009 -: 22 :- appellant without any premeditation and in the heat of passion, whereas, the same were intentionally inflicted by the 1[st] appellant. The injury caused to the deceased was intentionally inflicted by the 1[st] appellant and the said injury was sufficient in the ordinary course of nature to cause death. Matters being so, the act of the 1[st] appellant in causing the death of the deceased comes under Section 300 _Thirdly,_ which is punishable under Section 304 IPC. By any stretch of imagination, the application of Explanation 4 to Section 300 IPC cannot be attracted in this case. 28. At the same time, there is nothing to show that the 1[st] appellant has committed an offence punishable under Section 307 IPC by inflicting a stab injury on PW2. There is no sufficient evidence to constitute an offence punishable under Section 307 IPC, on the part of the 1[st] appellant. However, it has come out that when the said injury was caused on PW2, the 1[st] appellant has committed an offence Crl.A.1429/2009 -: 23 :- punishable under Section 324 IPC. 29. Matters being so, the conviction under Section 307 IPC is liable to be set aside and modified as one under Section 324 IPC. At the same time, the conviction entered by the court below on the 1[st] appellant under Section 302 IPC is not liable to be interfered with. 30. Regarding the sentence, we do not find any thing to interfere with the sentence imposed by the court below on the 1[st] appellant under Section 302 IPC and also the sentences imposed on him for the offences punishable under Sections 341, 294(b) and 447 r/w 34 IPC. The conviction and sentence imposed by the court below on the 1[st] appellant under Section 307 IPC is liable to be set aside. Instead of it, the 1[st] appellant is found guilty of the offence punishable under Section 324 IPC and also. We are satisfied that a sentence of rigorous imprisonment for two years for the offence punishable under Section 324 IPC, will Crl.A.1429/2009 -: 24 :- meet the ends of justice in this case. We do not find any reason to interfere with the conviction and sentences passed against the 2[nd] appellant. In the result, this Criminal Appeal is allowed in part; and, (i) The conviction and sentence passed by the court below against the 1[st] appellant for the offence punishable under Section 307 IPC alone are set aside and instead of it, the 1[st] appellant is convicted under Section 324 IPC and is sentenced to undergo rigorous imprisonment for two years. (ii) The conviction and sentences passed by the court below on the 1[st] appellant for the offences punishable under Section 302 IPC and also under Sections 341, 294(b) and 447 IPC read with Section 34 IPC are confirmed. (iii) The conviction and sentences passed as against the 2[nd] appellant are also confirmed. (iv) The substantive sentences of imprisonments shall run concurrently. The appellants are entitled to set off, of the period Crl.A.1429/2009 -: 25 :- undergone by them in custody in connection with the investigation, inquiry, and trial of this case, under section 428 Cr.P.C, as against the substantive sentences of imprisonments. Sd/- **V.K.MOHANAN, JUDGE** Sd/- **B.KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge_