Davis S/o Devassy and Daisy W/o Davis v. State of Kerala

``` CRL.A NO. 1448 OF 2006 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943 ``` ``` CRL.A NO. 1448 OF 2006 ``` ``` AGAINST THE JUDGMENT IN SC 573/2005 OF THE III ADDITIONAL SESSIONS COURT (ADHOC I), THRISSUR ``` ## **`APPELLANTS/ACCUSED:`** ``` 1DAVIS S/O.DEVASSY, CHERANGADAN HOUSE, KANAKAMALA DESOM,, KODASSERY VILLAGE, MUKUNDAPURAM. ``` ``` 2DAISY W/O.DAVIS, CHERANGADAN HOUSE, KANAKAMALA DESOM, KODASSERY VILLAGE. ``` ``` BY ADV SMT.K.V.BHADRA KUMARI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY PUBLIC PROSECUTOR SRI.SANAL.P.RAJ ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1448 OF 2006 ``` ``` 2 ``` ## JUDGMENT This appeal has been preferred by the accused in S.C.No.573/2005 on the file of the III Additional Sessions Court, (Adhoc I), Thrissur, challenging the judgment dated 6.7.2006, convicting and sentencing them under Section 304 Part II of IPC. 2. The prosecution case in short is that on 22.8.2004 at 3 pm., the accused who are the husband and wife, assaulted the deceased, the husband of PW13, with MO1 rafter and MO2 stone on his head, on the pathway lying in front of the house of the accused situated at Kanakamala, causing him serious injuries and he succumbed to the injuries at 7.40 am., on 15.9.2004 at Medical College Hospital, Thrissur. 3. Immediately after the incident, the deceased was taken to Taluk Head Quarters Hospital, Chalakkudy where he was examined by PW9 Civil Surgeon who issued Ext.P8 wound certificate. Since the injuries were serious, he was immediately ``` CRL.A NO. 1448 OF 2006 ``` ``` 3 ``` referred to the Medical College Hospital, Thrissur where he was examined by PW16, the lecturer in Surgery. On getting information that the deceased sustained injuries in the incident, PW12 the Additional Sub Inspector of Police, Chalakkudy went to the Medical College Hospital and recorded the statement of PW13, the wife of the deceased, at 8.15 pm. Ext.P9 is the said FI statement. On the basis of Ext.P9, PW13 registered the crime against the accused under Sections 324 and 307 r/w 34 IPC. Ext.P10 is the FIR. PW15, the Circle Inspector of Police, Chalakkudy took up the investigation on 23.8.2004. He went to the scene of occurrence and prepared Ext.P12 scene mahazar. He seized MO2 found at the scene of occurrence as per Ext.P12. He arrested both the accused on the same day. On questioning the 1[st] accused while in police custody, he gave a statement that he has concealed MO1 used for the commission of offence at the place near to his house and if he was taken there he will show the place where MO1 was concealed and on the basis of the said ``` CRL.A NO. 1448 OF 2006 ``` ``` 4 ``` information, he, as lead by the 1[st] accused, went to the place where MO1 was concealed and seized the same as per Ext.P5 seizure mahazar. On 15.9.2004 at 7.40 am, the deceased succumbed to the injuries at the Medical College Hospital while undergoing treatment. PW15 went to the Medical College Hospital and conducted inquest on the body of the deceased. Ext.P11 is the inquest report. He filed Ext.P15 report incorporating Section 302 IPC and deleting Sections 324 and 307 IPC. After completing the investigation, final report was filed before the learned Magistrate. The learned Magistrate after complying the statutory formalities committed the case to stand trial to the Court of Sessions. 4. Both the accused appeared at the court below on receipt of summons. After hearing both sides, the court below framed charge against the accused under Section 302 r/w 34 IPC. The charge was read over and explained to the accused who pleaded not guilty. ``` CRL.A NO. 1448 OF 2006 ``` ``` 5 ``` 5. The prosecution examined PWs1 to 16 and marked Exts.P1 to P18. MOs1 and 2 were identified. The accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. On the side of the defence Exts.D1 and D2 were marked. 6. Considering the evidence on record, the court below found the accused guilty under Section 304 Part II r/w 34 IPC and they were convicted for the said offence. The accused were sentenced to undergo rigorous imprisonment for a period of six years each and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of six months each. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 7. I have heard Smt.K.V.Bhadra Kumari, the learned counsel for the appellants and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned counsel appearing for the appellants ``` CRL.A NO. 1448 OF 2006 ``` ``` 6 ``` assailed the impugned conviction and sentence on many grounds. The learned counsel submitted that the occurrence witnesses who were examined as PWs 1 to 4 did not support the prosecution and the court below relied on the interested testimony of PWs10 and 13 to convict the accused. The learned counsel further submitted that PWs10 and 13 failed to properly identify the accused at the court and hence their evidence ought not to have been relied on. The counsel also submitted that in the first information statement given by PW13 initially, the house name of the 1[st] accused and the name of the 2[nd] accused was wrongly mentioned. There is no satisfactory evidence to show that the deceased died on account of the injuries allegedly sustained in the incident, argued the counsel. 9. On the other hand, the learned Public Prosecutor submitted that there are sufficient evidence both oral and documentary to prove that the accused have committed the offence under Section 304 Part II of IPC beyond reasonable doubt and the ``` CRL.A NO. 1448 OF 2006 ``` ``` 7 ``` court below was absolutely justified in convicting the accused. 10. The prosecution mainly relied on the oral evidence of PWs 1 to 4, 10 and 13 as well as the recovery of MO1 weapon consequent to the disclosure statement given by the 1[st] accused while in police custody and the medical evidence (oral evidence of PWs8, 9, 16 and Exts.P7, P8 and P18) to prove the incident and to fix the culpability on the accused. Out of the occurrence witnesses cited, PWs1 to 4 did not support the prosecution. PWs10 and 13 supported the prosecution. PW13 is the wife of the deceased. She gave Ext.P9 FI statement. She deposed that on 22.8.2004 at 3 pm., her husband was coming to home and when he reached the pathway in front of the house of the 1[st] accused, the 1[st] accused assaulted on his head, hands and leg with MO1 rafter. When he fell down, the 2[nd] accused came there with MO2 stone and hit on his head. When she screamed, the people gathered there and the accused ran away. She further deposed that her husband was taken to hospital in a vehicle and he died at the ``` CRL.A NO. 1448 OF 2006 ``` ``` 8 ``` hospital while undergoing treatment. She identified MO1, MO2 as well as the accused at the court. PW10 is the neighbour of the accused and the deceased. She deposed that she knew both the accused and the deceased. She further deposed that on 22.8.2004 at 3 pm., while she was standing in front of his house, she saw the deceased proceeding to his house and when the deceased reached in front of the house of the 1[st] accused, the 1[st] accused assaulted him with MO1 rafter. When fell down, he again assaulted on various parts of his body with MO1. Immediately, the 2[nd] accused came to the spot and gave a blow on the head of the deceased with MO2 stone uttering that “I will kill you” (നിന്നെ ഞാൻക ൊല്ലും). She specifically stated that the 2[nd] accused hit on the head of the deceased with MO2 thrice. She deposed that at that time PW13 was standing there. She further deposed that thereafter the people of the locality gathered there and the accused ran away from the place. She identified MOs1 and 2. ``` CRL.A NO. 1448 OF 2006 ``` ``` 9 ``` 11. PWs10 and 13 were cross examined at length by the learned counsel for the accused, but nothing tangible could be extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They clearly deposed the manner in which both the accused attacked the deceased and inflicted injuries on his head and other parts of the body with MOs1 and 2. They gave reliable, consistent and credible version of the crime. The learned counsel for the appellants submitted that there is no dock identification of the accused by PWs10 and 13. The learned counsel has also relied on three decisions of this Court in support of her arguments. The Division Bench of this Court in Vayalali Girishan and others v. State of Kerala (2016 KHC 204) had held that when no effort was taken by the trial judge to certify in the deposition that the person referred by witness as one of the members of the unlawful assembly is the person standing in the dock, it cannot be said that there was proper identification. In Joseph Thomas and another v. State of Kerala (2020 KHC 5395), ``` CRL.A NO. 1448 OF 2006 ``` ``` 10 ``` the learned Single Judge of this Court held that it is the duty of the Assistant Public Prosecutor in charge of the case to ask the witness to identify the accused present in the dock and such identification of the accused in the dock is essential in criminal trials when the offender is not previously known to the witness. In Manu G.Rajan and another v. State of Kerala (2021 (5) KHC 767) another Single Judge of this Court recently held that merely because all the accused persons were directly known by the witnesses, that by itself does not take away the requirement of proper identification in the dock and when there is failure to properly identify the accused in dock, it is fatal to the prosecution case. Here is a case where both the accused as well as the deceased, PWs13 and 10 are admittedly neighbours. PWs10 and 13 deposed that all of them knew each other. Even the accused do not have a case that PWs10 and 13 are strangers to them. There are only two accused. The evidence of PW13 would show that she clearly identified the accused at the court. What is ``` CRL.A NO. 1448 OF 2006 ``` ``` 11 ``` recorded by the learned trial judge is that the witness has identified the accused standing in the court. The learned counsel submitted that the failure on the part of the learned trial judge to record that the witness identified the accused standing in the dock is fatal. I cannot subscribe to the said argument. A reading of the entire depositions of PW13 would show that she clearly identified both the accused who were present at the court. The judgment in Vayalali Girishan’s case (supra) is related to a case where there were so many accused and charge was under Section 149 IPC as well. Here is a case where there were only two accused. Hence, the dictum therein would not apply to the facts of the present case. It is true that PW10 did not identify the accused at the court. But she clearly deposed that she knew both the accused who are her neighbours. Since there is a dock identification by PW13, the lack of dock identification by PW10 is insignificant. 12. The learned counsel further submitted that in Ext.P6 ``` CRL.A NO. 1448 OF 2006 ``` ``` 12 ``` first information statement, the name of the house of the 1[st] accused and the name of the 2[nd] accused was wrongly given by PW13 initially which were later on corrected in her 161 statement. As stated already, PW13 knew the accused. The name of the 1[st] accused has been clearly spoken to. Slight difference in the house name is insignificant. 13. Both PWs10 and 13 clearly deposed the manner in which the accused assaulted and attacked the deceased, the nature of the weapon used by them and the parts of the body of the deceased whereupon the injuries were inflicted by the accused. They have identified MOs1 and 2 as well. Therefore, I hold that the evidence of PWs10 and 13 could be safely relied on to prove the incident and to fix the culpability on the accused. 14. MO2 stone was recovered by the investigating officer at the spot itself. MO1 rafter was discovered on the basis of the disclosure statement given by the 1[st] accused while in police custody. The evidence of PW15 investigation officer and Ext.P13 ``` CRL.A NO. 1448 OF 2006 ``` ``` 13 ``` clearly proves the recovery of MO1 consequent to the disclosure statement given by the 1[st] accused while in police custody. It is admissible under Section 27 of the Evidence Act. 15. The evidence of ocular witnesses as well as the recovery gets corroboration with the medical evidence. PW9 is the doctor who examined the deceased immediately after the incident, at 4.15 pm, on 22.8.2004. Ext.P8 wound certificate has been issued through him. Ext.P8 would show that the deceased had lacerated wound 5 x 1.5 cam gaping deep upto bone transversally on the right parietal region, fracture of right forearm and fracture of right thigh. The cause of the incident stated in Ext.P8 is that Cherankkadan Devis and his wife (accused) attacked him. PW9 deposed that the injury No.1 in Ext.P8 could be produced by hitting with MO2 stone and other injuries could be produced by beating with MO1 rafter. Both MOs1 and 2 shown to him. He specifically deposed that all the injuries are sufficient in the ordinary course of nature to cause death. PW16 is the doctor, ``` CRL.A NO. 1448 OF 2006 ``` ``` 14 ``` who examined the deceased at the Medical College Hospital at 5 pm., on the same day. Ext.P18 is the case sheet relating to the treatment of deceased Chandran. PW16 deposed that the head injury sustained by the patient was sufficient in the ordinary course of nature to cause death and the said injury could be produced by hitting with MO2 stone shown to him. PW8 is the doctor who conducted autopsy on the body of the deceased. Ext.P7 is the autopsy report. He deposed that the deceased died of infection complicating injuries sustained. He also deposed that the injury Nos.1 to 5 noted in Ext.P7 are sufficient to cause death. He added that injuries Nos.13 and 15 are also sufficient in the ordinary course of nature to cause death and the injuries Nos.1 to 5 could be produced by hitting with the piece of stone (MO2) shown to him and the injuries noted in Ext.P7 could be produced by beating with rafter shown to him. Thus the medical evidence also supports the prosecution case. 16. On a careful examination of the entire evidence on ``` CRL.A NO. 1448 OF 2006 ``` ``` 15 ``` record, I have hesitation to come to the conclusion that the prosecution has successfully established that the accused had assaulted and inflicted injuries on the body of the deceased who later on succumbed to the injuries at the hospital. The medical evidence would show that the injuries inflicted by the accused were sufficient in the ordinary course of nature to cause death and the deceased died due to the infection complicating injuries sustained. Hence, I endorse the finding of the court below that the prosecution has succeeded in proving beyond reasonable doubt that the accused have committed the offence under Section 304 Part II of IPC. 17. The learned counsel for the appellants, lastly, submitted that the accused have children and, therefore, leniency may be shown in the matter of sentence. The court below convicted the accused to undergo rigorous imprisonment for a period of six years each and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of six months ``` CRL.A NO. 1448 OF 2006 ``` ``` 16 ``` each under Section 304 Part II of IPC. Considering the entire facts and circumstances of the case, and also considering the fact that the accused have been undergoing the ordeal of trial for the last 15 years, I am the view that the substantive sentence can be reduced to rigorous imprisonment for a period of four years each. The Criminal Appeal is thus allowed in part reducing the substantive sentence to rigorous imprisonment of four years each. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab