Binu S/o Chacko & Anu W/o Binu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** ## **CRL.A.No. 651 of 2012 ()** **------------------------AGAINST THE JUDGMENT DATED 26-03-2012 IN SC 457/2009 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA** **APPELLANTS/ACCUSED 1 AND 2:** **------------------------------------------------** **1. BINU S/O. CHACKO, KAPPILAMKUZHIYIL HOUSE, KACHIRA CITY, UPPUTHARA VILLAGE, IDUKKI DISTRICT.** **2. ANU W/O. BINU, KAPPILAMKUZHIYIL HOUSE, KACHIRA CITY, UPPUTHARA VILLAGE, IDUKKI DISTRICT.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.ALEX M.THOMBRA SMT.ACHU SUBHA ABRAHAM** ## **RESPONDENTS/COMPLAINANT:** **----------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. REPRESENTING THE CIRLCE INSPECTOR OF POLICE, IDUKKI.** **BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMG** ## **C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl. Appeal No. 651 OF 2012** ------------------------------------------------- DATED THIS THE 30[th] DAY OF MAY, 2016 ## **J U D G M E N T** ## Abdul Rehim, J: Appellants herein are accused No.1 and 2 in Sessions Case No.457 of 2009 on the files of the IV[th] Additional Sessions Court (Adhoc-II), Thodupuzha. The accused were charge sheeted for offences punishable under Sections 324 and 302 read with Section 34 of the Indian Penal Code (IPC). The trial court convicted the 1[st] appellant (A1) for offences punishable under Section 302 IPC and Section 324 read with Section 34 IPC and sentenced him to undergo imprisonment for life and to pay Rs.10,000/- and in default to undergo rigorous imprisonment for six months under Section 302 IPC. He was sentenced to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for 3 months under Section 324 read with Section 34 IPC. The 2[nd] appellant (A2) was not found guilty of offence punishable under Section 302 read with Section 34 IPC and **Crl. Appeal No. 651/2012** -2- acquitted under that count. She was convicted for offence punishable under Section 324 IPC and sentenced to pay fine of Rs.5,000/- and in default to undergo rigorous imprisonment for 3 months. It is aggrieved by the conviction and sentence imposed, that the appellants are approaching this Court in this appeal. 2. Prosecution case in brief is that, there existed a dispute between PW1 and the accused with respect to an incident in which a dog belonging to the accused had eaten the food kept inside the house of PW1. PW1 had abused the mother's sister of the accused persons with respect to this. Thereupon, on 24.12.2007 at about 7 p.m. in the pathway situated in front of the house of the accused at Kachira City in Upputhodu, the accused persons beat PW1 with a stick and inflicted injuries upon them. When PW1 cried aloud the deceased, who is the brother of PW1, rushed to the spot and interfered. Thereupon A1 took a knife from his waist and stabbed the deceased below the collar bone region on his left chest, causing a grave injury. Specific case is that **Crl. Appeal No. 651/2012** -3- A2 had hit PW1 with a wooden stick on the region above right ear and on the left side of the head, causing injuries. The deceased, while undergoing treatment at the Medical College Hospital, Kottayam, succumbed to the stab injury at about 8 p.m. on 25.12.2007. It is alleged that the appellants acted together in furtherance of their common intention and there by committed offences as mentioned above. 3. Both the appellants pleaded not guilty of the charges alleged. Prosecution adduced evidence before the trial court, which consisted of the oral testimony of PW1 to PW18. Ext.P1 to Ext.P15 documents were marked and MO1 to MO7 material objects were identified. Exts.D1 to D9 are exhibits marked on behalf of the appellants. The case was registered based on Ext.P1 statement given by PW1 at 11.00 p.m. on 25.12.2007 which was recorded by PW15, based on which Ext.P10 FIR was registered. Prosecution case is that, after the incident which occurred at about 7 p.m., the deceased was taken in a vehicle to the District Hospital, Idukki, from where he was referred to the Medical **Crl. Appeal No. 651/2012** -4- College Hospital, Kottayam for better management. PW1 got admitted at the District Hospital, Idukki at 10.00 p.m. on 24.12.2007 itself. Ext.P1 statement was given by PW1 at the Police Station after death of the deceased on 25.12.2007. Based on Ext.P10 case registered PW17 took charge of the investigation on 26.12.2007 and conducted inquest on the dead body of the deceased at the Medical College Hospital, Kottayam, at about 9.30 a.m. on the said day and prepared Ext.P2 inquest report. He visited the scene of occurrence at about 4.15 p.m. on the same day and prepared Ext.P3 Scene Mahazar. MO3 knife found lying at about 13.5 metres towards north of the spot of occurrence was taken into custody, after recording the same in Ext.P3. The appellants got admitted at the District Hospital, Idukki on the same day night on the allegation of having sustained injuries in the same incident. They were arrested at 10.00 a.m. on 27.12.2007, after discharge. Based on Ext.P5(a) disclosure statement of the 2[nd] appellant, MO4 stick as well as MO1 'churidar' worn by the 2[nd] appellant at the time of **Crl. Appeal No. 651/2012** -5- incident were recovered from the house of the accused, on preparing Ext.P5 mahazar. Similarly, based on Ext.P4(a) disclosure statement of the first appellant, MO2 'lunki' worn by the 1[st] appellant at the time of incident was recovered and taken into custody by preparing Ext.P4 mahazar. Material objects, MO3 to MO7 were sent for chemical examination and Ext.P11 is the Report of the Chemical Examination. 4. PW10 Doctor who conducted Post Mortem on the body of the deceased had noted the following ante-mortem injuries mentioned in Ext.P6 Post Mortem certificate :- - “(1). Linear curved abrasion on right side of back of abdoman, with concavity outwards, 18 cm above lower end of vertebral column at 1 cm outer to midline, for a total length of 6.5 cm. - (2). Incised sutured wound on left frontal region 2.5 cm oblique with lower inner end at root of nose on midline, muscle deep. - (3). Sutured stab wound on left side of chest 4.2 cm, transverse 7 cm below armpit. The inner front end blunt and back outer end pointed, entered the chest cavity at 4[th] intercostal space. (surgical). ## **Crl. Appeal No. 651/2012** -6- (4). Sutured stab wound on left side of front of chest 11.8 cm with a gaping of 3 cm on suture removal. The inner lower end, 0.5 cm outer to angle of luis, blunt end. The outer upper end, pointed, at middle of left collar bone. The wound cut the skin, subcutaneous tissues directed back wards upwards for a total minimum depth of 10 cm. The wound cut the lower portion of sternocleadomastoid, the left subclavian vein. The both chest cavities contained a total 200 litres of blood stained fluid. (5). Small linear abrasions, horizontal on front of left side of chest 6 cm above costal margin over a total area of 7.5 x 4.5 cm.” While examining, PW10 opined that, death was due to the stab injury sustained by the deceased in front of the chest and neck. He deposed that injury No.4 is fatal and it can cause the death, which is a stab injury on the side of the chest. He further deposed that injury No.4 can be caused with MO3 knife. 5. PW1 to PW4 are the occurrence witnesses examined. PW1 sustained injury in the incident and got admitted at the District Hospital, Idukki at 10.00 p.m. on **Crl. Appeal No. 651/2012** -7- the same day itself. Ext.P15 is the 'Accident Register-cumWound Certificate' relating to his treatment. He sustained two small injuries, one over right supra orbital area (above the right eye) and another over the upper eye lid along with small multiple abrasion over the right elbow. The Doctor who examined PW1 had noticed smell of Alcohol, which is recorded in Ext.P15. Testimony of PW1 is that, there occurred an incident of the dog of the appellants eating food kept inside his house, upon which he had quarrel with the mother's sister of the appellants. A case was registered against him with respect to the abuse made against her, in which he was punished to fine. According to him, this occurred about 25 days prior to the date of occurrence. On the date of occurrence, when he was coming through the pathway in front of the house of the appellants, the 1[st] appellant abused him with filthy language and the 2[nd] appellant had beaten him with an wooden stick on the right side of his forehead above the left ear and on the left elbow, causing injuries. When he cried aloud, his younger brother **Crl. Appeal No. 651/2012** -8- Prasad (the deceased) came to the spot along with PWs.2 and 3. When the deceased tried to rescue PW1, the first appellant inflicted a stab injury on his chest with a knife taken from his waist. The deceased was then taken to the Medical College Hospital and he succumbed to the injuries on the next day. According to PW1, PW14 had caught hold of the knife and snatched it from the 1[st] appellant and the wooden stick was taken away by the 2[nd] appellant. He denied the suggestion of having consumed liquor on the said day. According to PW1, he had mentioned in Ext.P1 statement that there was sufficient light in the scene of occurrence. But PW15 in his cross examination had denied of PW1 given any such statement. PW1 had specifically denied the suggestion that he along with the deceased had trespassed into the house of the appellants. He had also denied the suggestion of attacking the 2[nd] appellant, who was breast feeding her new born baby. He further denied the suggestion that the deceased had sustained injury from a knife which he was holding and that both PW1 and the **Crl. Appeal No. 651/2012** -9- deceased were at an intoxicated stage due to excessive consumption of alcohol. 6. Even though, PW2 had supported the version put forth by PW1, his narration about witnessing the incident of inflicting stab injury cannot be believed, in view of the fact that the version put forth by PW1 in Ext.P1 statement is to the effect that PW2 along with PW3 had reached the spot only after the deceased sustained the stab injury. The above aspect remains further fortified through contradiction marked as Ext.D1, while examining PW2. His testimony also contains material contradictions elicited, which are marked as Exts.D2 and D3. 7. PW3 is the mother of the deceased and PW1 is their brother. Testimony of both those witnesses with respect to witnessing the actual incident of inflicting injury cannot be believed because of the material contradiction with respect to the time of their arrival at the spot of occurrence. However, testimony of PW2 to PW4 had corroborated the fact that, both the deceased as well as ## **Crl. Appeal No. 651/2012** -10- PW1 were seen remaining injured at the scene of occurrence and that they were taken to hospital. 8. Contention raised by learned counsel for the appellants is that, the prosecution had failed in explaining about the vital fact regarding injuries sustained to the appellants in the incident, before the trial court. It is contended that no investigation was conducted in this regard and that the failure on the part of the prosecution is fatal. 9. On a re-appreciation of the entire evidence on record we are convinced that there is substantial evidence available to prove that the deceased had sustained the fatal stab injury at the scene of occurrence, as alleged by the prosecution. There is supporting medical evidence that he succumbed to the fatal injury sustained, which could be caused with MO3 weapon. There is also evidence to the effect that PW1 had sustained injuries in the same incident and he was treated at the District Hospital at Idukki. There is also evidence that MO3 weapon was recovered from the **Crl. Appeal No. 651/2012** -11- scene of occurrence. Case put forth by the appellants in their statement, while questioned under Section 313 Cr.P.C is that, both the deceased and PW1 had trespassed into the house of the appellants after consuming alcohol and they attacked the 2[nd] appellant, who was breast feeding her child. On hearing her cry, the 1[st] appellant, who was in the kitchen, rushed to the front room and there occurred a scuffle between the appellants on the one side and the deceased and PW1 on the other side. During the scuffle PW1 took the knife kept with him and attempted to stab the 1[st] appellant. But due to darkness the stab injury was mistakenly sustained on the body of the deceased. It is contended that the entire scene of occurrence was inside the house and on the varandha of the house of the appellants and the story put forth by the prosecution that the deceased and PW1 were attacked in the pathway in front of their house is a false version. But the incident as narrated by the appellants is not supported by any acceptable evidence. As per Ext.P8 scene plan prepared by **Crl. Appeal No. 651/2012** -12- PW13 Village Officer, the spot of incident is about 18.80 metres away from the house of the appellants. Ext.P3 scene mahazar would indicate that PW17 had collected blood stained soil and dry leaves (MO5 and MO6) from the spot of incident, whereas there is no evidence of any blood stains present either in the courtyard or in the house of the appellants. MO4 is the wooden stick recovered based on Ext.P5(a) disclosure statement given by the 2[nd] appellant. The appellants have no case that such a stick was brought to the scene by the deceased or PW1, nor they had a case that any attack was made with such a stick by them. Ext.P11 chemical analysis report had revealed that MO4 stick contained blood stains, which is of human origin, belonging to 'A' group. Ext.P11 would further indicate that blood stained cotton gauze collected at the time of post mortem contained blood of the deceased, which was proven to be belonging to group 'A'. 10. Exts.D8 and D9 are the 'Case Sheets' with respect to the treatment of the appellants at the District Hospital, **Crl. Appeal No. 651/2012** -13- Idukki, which were proved through PW18 Doctor. It would indicate that both the appellants got admitted in the hospital at 10 p.m. On 24.12.2007. But they were discharged on the same day on their request. They were seen re-admitted on the next day and continued treatment there as inpatients under surveillance of police, till 27.12.2007 when they were arrested. But the injuries noted with respect to both of them are totally insignificant and are only minor tenderness and a small abrasion. It is pertinent to note that, the history (alleged cause) noted in the Case Sheets does not reveal any attack or assault by the deceased or PW1. The burden to offer explanation with respect to injuries sustained to the accused arises only when there is evidence that the accused also had sustained injuries in the same occurrence. In the case at hand, the appellants have not succeeded in proving that they sustained any serious injuries in the incident. Therefore it can be concluded that there is no failure on the part of the prosecution in that respect. When the prosecution comes ## **Crl. Appeal No. 651/2012** -14- with a definite case that the offence was committed by the accused and proves their case beyond any reasonable doubt, it become hardly necessary for the prosecution to explain as to how and under what circumstances injury happened to be inflicted on the person of the accused, is the legal proposition settled by the Hon'ble Apex Court in the decision in **Indersingh and others** v. **State of Rajasthan [2015 (1) KLJ 540]** . 11. Based on the foregoing discussions, this court is satisfied that the prosecution could establish beyond any reasonable doubt that, the 1[st] appellant had caused a fatal stab injury on the deceased, which led to his death. There is also convincing evidence that the 2[nd] appellant had caused injuries on PW1 with MO4 wooden stick. It is noticed that counsel for the appellants had filed a Memo, dated 16.5.2016, to the effect that the 2[nd] appellant is not intending to prosecute the appeal any further and that she may be permitted to withdraw the appeal. Since we are convinced about the guilt of the 2[nd] appellant under Section ## **Crl. Appeal No. 651/2012** -15- 324 IPC, we have to confirm the conviction and sentence imposed against her, even otherwise. More over, learned counsel for the appellants conceded that the 2[nd] appellant had already remitted the fine amount. As held by the trial court, there is no evidence available to hold that she had shared any common intention with respect to murder of the deceased. We also notice that the prosecution has not challenged the findings in this regard. Hence the conviction and sentence against the 2[nd] appellant is hereby confirmed. 12. With respect to conviction against the 1[st] appellant we have to consider the question as to whether there is sufficient evidence available to sustain the conviction against him under Section 302 IPC. On an evaluation of the entire evidence it is clear that, genesis of the incident was with assault on PW1. At that time the deceased was not available at the scene. Prosecution case is that the deceased came to the scene on hearing cry of PW1. Evidence let in is that, the deceased interfered when the 1[st] appellant attempted to drag PW1 to the court yard of the **Crl. Appeal No. 651/2012** -16- house. When the deceased made an attempt to get PW1 released, the 1[st] appellant stabbed him with a knife taken from his waist. As already discussed, the incident stands proved based on the solitary evidence of PW1. There is no evidence establishing any premeditation or plan with respect causing murder of the deceased by the 1[st] appellant. The totality of evidence would indicate that there occurred an altercation and scuffle at the scene. The deceased is a person who happened, to reach the scene only on hearing the cry of his brother. There is no proof that the 1[st] appellant had stabbed the deceased with a premeditated intention due to previous enmity. Therefore, the act committed by the 1[st] appellant is without any premeditation and the same occurred in a sudden fight in the heat of passion based on a quarrel occurred. There is no evidence to show that the 1[st] appellant had taken undue advantage or acted in a cruel or unusual manner, because there is no allegation that the 1[st] appellant had caused any further injury after the deceased fell down or that he had chased **Crl. Appeal No. 651/2012** -17- the deceased and inflicted further injuries, when the latter was in a helpless position. Therefore we are in disagreement with the view taken by the trial court, that there is proof against the 1[st] appellant of having committed offence described under Section 300 of IPC. In the decision of the Hon'ble Supreme Court in **Sukbhir Singh V. State of Haryana (2002) 3 SCC 327** it is held that all fatal injuries resulting in death cannot be termed as cruel or unusual, for the purpose of availing benefit of exception 4 to Section 300 IPC. If in an incident, after the injuries were inflicted and the injured had fallen down, the appellant has not shown to have inflicted any other injuries upon the person when he was in a helpless position, it is held that, it cannot be found that the accused had acted in a cruel or unusual manner. When analysed based on the above legal proposition, the case at hand will squarely fall under exception 4 to Section 300 IPC. 13. In view of the above discussions we are of the opinion that conviction against the 1[st] appellant under ## **Crl. Appeal No. 651/2012** -18- Section 302 IPC cannot be sustained and the evidence on record would prove guilt of the 1[st] appellant only with respect to an offence punishable under Section 304 IPC. It is proved in evidence that the 1[st] appellant had caused a grievous stab injury on the deceased which had resulted in his death. Intention on the part of the 1[st] appellant in causing such a bodily injury, which is likely to cause death, stands proved. Therefore guilt of the 1[st] appellant under Section 304 Part I stands established. Hence we are inclined to alter the conviction against him under Section 304 Part I of IPC. 14. With respect to the sentence to be imposed on the 1[st] appellant, we take note of the fact that while questioned under Section 313 Cr.PC, the 1[st] appellant gave a statement that he was engaged in painting works and he met with an accident in which he sustained serious injury due to fall from the 2[nd] floor of a building, which caused severe damage to his Disc of the vertebrae and he is now remaining totally paralysed and is unable to do anything ## **Crl. Appeal No. 651/2012** -19- without help of others. The trial court had conducted questioning of the 1[st] appellant in an Ambulance, in which he was lying bed ridden due to dislocation of spinal discs, on 14-02-2012. Learned counsel for the appellants submitted that, the 2[nd] appellant, who is the wife of the 1[st] appellant is not taking any interest in prosecuting the appeal and that the circumstances reveals that there exists disharmony in their matrimonial relationship. Under the above mentioned circumstances this court is inclined to take a lenient view in the matter of sentence and propose to impose sentence of rigorous imprisonment for 6 years, for offence punishable under Section 304 Part I IPC. 15. In the result, the above appeal is disposed of on the following terms: (i) The 1[st] appellant (A1) is found guilty of offence punishable under Section 304 Part I IPC and also offence under Section 324 read with Section 34 IPC. (ii) Conviction imposed against the 1[st] appellant (A1) under Section 302 will stand altered to Section 304 Part I, ## **Crl. Appeal No. 651/2012** -20- IPC. The 1[st] appellant is sentenced to undergo rigorous imprisonment for 6 years and to pay fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a period of 3 months, under Section 304 Part I IPC. The conviction and sentence passed against him under Section 324 read with Section 34 IPC will stand confirmed. The substantive sentence of imprisonment will run concurrently. The 1[st] appellant is also entitled to set off with respect to the period of detention, under Section 428 of Cr.P.C. (iii) The conviction and sentence imposed against the 2[nd] appellant under Section 324 IPC will also stand confirmed. Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE.** ## **jvt/AMG** True copy P.A. to Judge