Eldhose @ Saipp v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HON'BLE MR. JUSTICE P.Q. BARKATH ALI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 867 of 2007() ----------------------SC.797/2005 of I ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): ACCUSED --------------------- ELDHOSE @ SAIPP, AGED 52, S/O.MATHAI, KIZHAKKEKUNNEL HOUSE, MULAMKUZHY BHAGOM, ILLITHODE KARA, MALAYATTOOR VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, CHENGAMANAD. PUBLIC PROSECUTOR SRI. C.S. HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 0508-2011, THE COURT ON 05/08/2011 DELIVERED THE FOLLOWING: ## **V. RAMKUMAR & P.Q.Barkath Ali JJ.** **= = = = = = = = = = = = = Crl.Appeal No.867 of 2007 = = = = = = = = = = = = = = Dated this the 5th day of August, 2011** ## **JUDGMENT** ## **Ramkumar, J.** In this appeal filed under Sec.374 (2) Cr.P.C. the petitioner who was the sole accused in S.C. No. 797 of 2005 on the file of the I Addl. Sessions Judge, Ernakulam, challenges the conviction entered and the sentence passed against him for an offence of murder punishable under Sec. 302 I.P.C. ## **PROSECUTION CASE** 2. The case of the prosecution can be summarised as follows:- _Esthapanose @ Pappachan aged 54 years and the accused Eldos @ Saipp were playing cards in the KGP Recreation Club owned by the deceased and situated near colony Junction in Malayattoor Village. In the said game, the accused lost money and he demanded more money_ **Crl. Appeal No.867/2007** **2** _from the deceased. An amount of Rs. 67/- which was in the pocket of the accused was snatched away by the deceased. This resulted in a scuffle between the two in the course of which the accused intentionally and knowingly caused the death of Pappachan by hitting the deceased on the forehead with MO1 hammer which the deceased was using for straightening nails. Even though the deceased was rushed to the Little Flower Hospital Angamaly, he had succumbed to the injuries on the way to the hospital. The accused had thereby committed an offence punishable under Sec. 302 I.P.C._ ## **THE TRIAL** 3. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 15 witnesses as P.Ws 1 to 15 and got marked 13 documents as Exts. P1 to P13 and 13 material objects as Mos 1 to 13. **Crl. Appeal No.867/2007** **3** 4. After the close of the prosecution evidence, the appellant was examined under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. His stand was one of total denial including his presence in the club on the date of occurrence. 5. Since this was not a case of no evidence for the prosecution, the learned Addl. Sessions Judge did not record an order of acquittal within the meaning of Sec. 232 Cr.P.C. The appellant was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support there of. He did not adduce any defence evidence. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 20-2-2007 found the appellant guilty of the offence of murder punishable under Sec. 302 I.P.C. and sentenced him to imprisonment for life and to pay fine of **Crl. Appeal No.867/2007** **4** `10,000/- and on default to pay the fine to suffer simple imprisonment for three months . It is the said judgment which is assailed in this appeal. 7. We heard Advocate Sri. S. Rajeev, the learned counsel appearing for the appellant and Advocate Sri. C.S.Hrithwik, the learned Public Prosecutor who defended the State. 8. The only point which arises for determination in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? ## **THE POINT:** ## **PROSECUTION WITNESSES** 9. _**A) P.W.1 (Martin K. Tharayil)** is an attester to Ext.P1 inquest report prepared by P.W.15 on 16-07-2003 from the Little Flower Hospital, Angamaly._ _**B) P.W.2 (Ebby Stephen)** is the son of the deceased. He was a student of U.C. College, Aluva doing his Bachelor of Computer Application in the Distant Education Scheme. He was also the President of the KGP_ **Crl. Appeal No.867/2007** **5** _Recreation Club of which is father the deceased was the Secretary. He is the only occurrence witness who claims to have seen the occurrence while on his way to the tailoring shop of his friend by name Shyju. He also proved Ext.P2 F.I. statement and MO1 hammer which was allegedly used by the accused to hit the deceased. Ext.P3 mahazar dated 18-07-2003 was also marked through P.W.2 who allegedly witnessed the seizure of MO2 shirt and MO3 pants of the accused from the police station._ _**C) P.W.3 (Sulaiman)** was one of the persons who was in the Recreation Club besides the accused and the deceased. According to him, when he left the Club at 3 p.m. the deceased and the accused were engaged in an altercation. He along with one Varghese (PW6) allegedly left the Club together._ _**D) P.W.4 (Bobby Stephen)** who is the daughter of the deceased and the elder sister of P.W.2. She did not see the occurrence but she claims to have rushed to the scene soon after the occurrence from the nearby house. She had completed her course in Bachelor of Computer Application from the U.C. College and was waiting for her results._ **Crl. Appeal No.867/2007** **6** _**E) P.W.5 (Sasikumar V.V.)** is a person cited by the prosecution to prove an extra-judicial confession allegedly made by the accused to him. He, however, turned hostile to the prosecution. Ext.P5 is his case diary contradiction._ _**F) P.W.6 (P.P.Varghese)** is one of the persons who was present in the Recreation Club along with P.W.3. He allegedly brought liquor on the request of P.W.3 and the deceased._ _**G) P.W. 7 (Anil.P.P.)** is a driver by profession and he took the deceased to the hospital in his autorickshaw . He is also the attester to Ext.P4 scene mahazar under which MO1 hammer , MO4 glass tumbler , MO5 blood scrapping, MO6 playing cards and MO7 series of three teeth and one broken tooth were seized._ _**H) P.W.8 (Cheriyachan)** runs a Cool Bar near KGP Recreation Club. He had on the date of occurrence at about 4 p.m. sold soda to the accused. He, however, did not support the rest of the prosecution case that the accused was frequently coming to the KGP Recreation Club for playing cards and that after the occurrence in this case he had seen the accused getting into a bus._ _**I) P.W.9 ( Joy U.P.)** was the Conductor of Jesus bus. He would depose that the accused was the conductor_ **Crl. Appeal No.867/2007** **7** _in Smart Bus and the accused had boarded the bus on the date of occurrence. This witness, however, did not say from where the accused boarded the bus and also did not know whether the accused was drunk._ _**J) P.W.10 (Paul Mathew)** is an autorickshaw driver by avocation. He was cited to prove that accused had travelled in his autorickshaw initially to a place called Naduvath and them to Chandanappura. He did not support the prosecution and was, therefore, declared hostile. He deposed that the accused used to be known as Saippu._ _**K) P.W.11 (N.J. Shanmukhan)** who was the Village Assistant of Malayattor Village proved Ext.P6 site plan . According to this witness, if a person stands in the pathway shown as “19” in Ext.P6 plan, he cannot see inside the Recreation Club on account of the height of the boundary wall._ _**L) P.W.12 (K.P. Biju)** is an attester to Ext.P7 seizure mahazar dated dated 18-07-2003 regarding the recovery of MO12 series and MO13 series._ _**M) P.W.13 (Dr.P. Babu)** was the Associate Professor of Forensic Medicine in the Medical College, Allappuzha. He conducted autopsy over the dead body of_ **Crl. Appeal No.867/2007** **8** _deceased Pappachan. Ext.P8 is the post mortem certificate approved by P.W.13. The first ante mortem noted by him was a lacerated would 12.5 x 3.5 x 1 cm on the middle of forehead 3 cm above the root of nose. The second ante mortem injury noted was a lacerated would 1x1x1 cm. involviing the middle of left eyebrow. He also noted an injury 3 x 1 cm. on the inner aspect of middle of upper lip and the loss of tooth Nos. 11,12 and 13 with infiltration of blood in their sockets. P.W.13 has opined in Ext.P8 postmortem certificate that the death of the deceased was due to the head injury sustained by him and that that the effect of injury Nos. 1 and 2 could be the result of brain injury. The opinion about the cause of death was that those two injuries had caused the death. He further deposed besides the other injuries could be caused by hitting with a hammer like MO1._ _**N) P.W.14 (K.M. Kunju)** was the Sub Inspector of Police, Kalady. He recorded Ext.P2 F.I. statement of P.W.2 at 6. 30 p.m. on 15-07-2003 and registered Ext.P2 (a) F.I.R._ _**O) P.W.15 (T.C. Venugopalan) was the Circle Inspector of Police, Chengamanad** who conducted the investigation. On 16-7-2003 between 8.30 and 10.30 a.m._ **Crl. Appeal No.867/2007** **9** _he held inquest over the dead body of Esthappanose @ Pappachan from the Little Flower Hospital, Angamaly. Ext. P1 is the inquest report to which P.W.1 is the attester. MO8 (Lungi) and MO9 (Shirt) found on the dead body were seized under Ext. P12. He thereafter dispatched the corpse to the Medical College Hospital, Alappuzha for autopsy. Thereafter he proceeded to the scene of occurrence at 11.15 a.m. on the same day and prepared Ext.P4 scene mahazar to which P.W.7 is an attester. MO 1 hammer, MO7 series of three teeth and a broken tooth, MO6 playing cards, MO10 one playing card containing chance fingerprint , MO5 blood scrapping and MO4 glass tumbler were seized under Ext.P4 scene mahazar. He then submitted Ext.P10 report. On 18-7-2003 at 10.30 a.m. he arrested the accused from the vicinity of Perumbavoor bus stand. The accused had aberrations on his right hand. He was got examined at the Community Health Centre, Kalady. On the same day P.W.15 prepared Ext.P3 mahazar as which MO2 shirt, MO3 pants and MO11 purse belonging to the accused were seized. On the same day at 4 p.m. P.W.2 produced from the Little Flower Hospital the currency notes for Rs. 1080 and coins for Rs. 19 in three plastic tokens which were marked as MO12 series and_ **Crl. Appeal No.867/2007** **10** _Ext.P9 I.D. card of the deceased. The above material objects were seized under Ext.P7 seizure mahazar. P.W. 15 produced the Mos as per Ext.P12 series of property lists. Ext.P13 is the copy of the forwarding note filed by him requesting the dispatch of the properties to the Chemical examiner for the detection of human blood, if any, on them._ 10. Ext.P11 is the certificate of analysis which shows that human blood was detected on MO8 lungi and MO9 shirt belonging to the deceased, MO1 hammer, MO7 series of teeth belonging to the deceased and MO2 red shirt and MO3 pants belonging to the accused. After the conclusion of investigation PW15 laid the final report before court. ## **APPELLANT'S ARGUMENTS** 11. Advocate Sri.S.Rajeev, the learned counsel appearing for the appellant made the following submissions before us in support of his fervent plea for acquittal of the appellant:- PW2, who has figured as the sole eye witness is a highly interested, inimical and partisan witness. His version that he saw the occurrence **Crl. Appeal No.867/2007** **11** on his way to the tailoring shop of one Shaiju is nothing but a cock and bull story. There is no such tailoring shop, much less a person called Shaiju. His first version in Ext.P2 First Information Statement was that after being hit, his father cried aloud and fell on the floor with his face upwards and by that time his sister (PW4) also came running. But when examined before court he would come out with a version that seeing the occurrence he ran home and brought his sister. Going by his version in the First Information Statement, himself, one Valiyappan and others took the deceased to the hospital. The said Valiyappan has not been examined nor is he a charge witness. Going by his version in the FIS, hearing the hue and cry people came running and the accused ran away after leaving the hammer in the courtyard. But from the witness box he would say that he ran home crying and at that time his sister (PW4) came to the scene of occurrence. While according to PW2 after the deceased fell on the floor he was not beaten, the court charge is to the effect that he was struck with the hammer both before and after the fall. Apart from the contradictions and omissions in the evidence of **Crl. Appeal No.867/2007** **12** PW2, the testimony of PW4 would also clearly indicate that PW2 had not seen the occurrence. This is because what PW4 has deposed is that PW2 had told her that something had happened to the deceased. If PW2 had seen the occurrence there was no occasion for him to say that something had happened to the deceased. The evidence of PW4 will go to show that after the deceased was taken to the hospital, she had telephoned to the police and what she told the Police was that somebody had assaulted her father. This means that she was unaware of the assailant when she called the Police. She maintained the above stand by saying that when the Police came also she told that her father was assaulted by somebody. If PW2 had told her about the occurrence and also about the assailant, there was no necessity for her to tell the police that somebody had assaulted her father. PW3(Sulaiman) and PW6(Varghese) are the persons who were also present in the recreation club on the date of occurrence. PW3 is a person having bad antecedents and is involved in several crimes. Even though PW15, the Investigating Officer would not admit, PW3 and PW6 have both admitted that they were taken into **Crl. Appeal No.867/2007** **13** custody by the Police and were let off only on the next day. This reinforces the defence contention that the accused was not the assailant and PW2 was made to swear to utter falsehood by saying that he had seen the occurrence. According to PW7 there were workers in the nearby house under construction on the date of occurrence and it was two Tamilians who came to him to say that PW2 was calling him. PW7 had further deposed that himself and one Joby(CW17) and two Tamilians had gone inside the club. But none of them have been examined by the prosecution. The Investigating Officer (PW15) has admitted that the accused had some injury and he was taken to the Community Health Centre, Kalady where the accused told the doctor that he sustained the abrasion on his hand when the deceased had pushed him. If, as a matter of fact such a version had been given by the accused, that would have found a place in the wound certificate which has been suppressed by the Investigating Officer. PW15 has further admitted that the shop of Shaiju is not shown in the scene mahazar and that he did not question the said Shaiju. PW15 has admitted that his investigation had revealed that there were **Crl. Appeal No.867/2007** **14** workers in the nearby house under construction. But none of them has been examined. None of the witnesses had seen the accused immediately after the occurrence. Nobody has stated as to how the occurrence started. The prosecution has not proved the genesis of the occurrence. The accused also was a member of the club and therefore even if he was present there he could not have been a trespasser. In the face of all these circumstances, the conviction entered and the sentence passed against the appellant cannot be sustained. ## **JUDICIAL EVALUATION** 12. We are afraid that we cannot agree with the above submissions made on behalf of the appellant. The testimony of PW2 has a ring of truth. Merely because the tailoring shop of Shaiju has not been shown or that the Investigating Officer has not questioned the said Shaiju, it cannot be straightaway concluded that Shaiju into whose tailoring shop PW2 was going is a fictitious person. The purpose of preparing the scene mahazar and the scene plan are to locate the exact scene of occurrence and not to locate the **Crl. Appeal No.867/2007** **15** places where each of the witnesses went. 13. The place of occurrence is the Recreation Club by name K.G.P Recreation Club belonging to the deceased who was the Secretary of the club. His son PW2 is the President of the said club. The said Club is situated to the south of a building which abuts the Kalady-Malayattoor public road. Further to the south of the Recreation Club building there is one more building and still further to the south is the family house of the deceased where PWs.2 and 4 were staying along with the deceased. That house is also in the same compound. The eastern boundary of that compound is a pathway leading to one Thacheth ferry. On the eastern side of the said pathway is the compound in which the ancestral house of the deceased is situated and to the north of the said building is a newly constructed house belonging to the deceased. The Kalady-Malayattoor road runs east-west along the northern boundary of the two compounds referred to above. **Crl. Appeal No.867/2007** **16** ## 14. The main part of the testimony of PW2 is as follows:- On 16.1.2003 after about 4 pm, PW2 was proceeding to the tailoring shop of his friend Shaiju. He was walking along the front of the KGP Recreation Club. At that time he had seen his father, the deceased and two others who included PW3 (Sulaiman) inside the club building. By about 4.45 pm he returned along the same way to find that the two other persons were standing on the road in front of the Club and when he looked into the Club building, he saw the accused hitting on the forehead of his father with MO1 hammer made of steel. As soon as receiving the first blow the deceased took a step behind. Then the accused hit him again on the face and near the mouth. Receiving the blow the deceased fell on the floor. The accused then ran out leaving the hammer somewhere there. Screaming aloud he ran to his house. At that time his sister PW4 came. Both of them then went to the deceased. Blood was oozing out from the face and head of the deceased. He cried aloud. People came running. Somebody had brought an autorickshaw and the deceased was taken in the autorickshaw **Crl. Appeal No.867/2007** **17** along with one Valiyappan Varghese to the Little Flower Hospital, Angamaly. While inside the autorickshaw the deceased was groaning and moaning. On reaching the hospital the doctor examined the deceased and pronounced him dead. At 6 pm he went to the Kalady Police Station and gave Ext.P2 First Information Statement. 15. No doubt, there are a few contradictions, exaggerations, omissions and embellishments in the testimony of PW2, PW4 and others. But, they are not in respect of material aspects so as to reject their testimony outright. It is pertinent to remember that PW2 was giving evidence on 15.1.2007 that is nearly 4 years after the occurrence. On the date of his examination, he was aged only 22 years. Having regard to the passage of time and the imperfections in the human memory and the difficulty to register the details of an occurrence which took place about 4 years ago and to retain the same and recapitulate the same in the proper sequence of events, we have no **Crl. Appeal No.867/2007** **18** hesitation to hold that PW2 had seen his father being hammered by the accused. 16. The testimony of PW4 also cannot be rejected as unworthy of credence for the reason that when she telephoned to the Police she did not know the assailant. The purpose of informing the Police was not to reveal the name of the assailant but to get the Police fast somehow or other at the place of occurrence. PW4 has categorically said at page 4 of the deposition that PW2 told that the accused had hit her father. There is no reason to disbelieve the said testimony. Her evidence also cannot be used by the appellant to say that, that was the earliest version given to the Police so as to jettison Ext.P2 F.I.S given by her brother to the Police. 17. It is pertinent to remember that no sort of enmity or illwill has been attributed either to PW2 or to PW4 so as to induce the court to hold that they had some hostile animus so as to falsely implicate the appellant. **Crl. Appeal No.867/2007** **19** 18. The argument based on the abrasion sustained by the appellant, as spoken to by PW15, is also not availed to the appellant. No suggestion was put to PWs.2 and 4 as to whether the appellant had sustained any injury in the occurrence. He had no case that he sustained any injury or that the deceased was the aggressor. It must be remembered that MO1 hammer had been brought by the deceased from his house to the Recreation Club for straightening the nails and it was the said steel hammer which was conveniently picked up by the accused and used by hitting the deceased on the forehead and face resulting in his death. There is no question of any suppression of wound certificate or the version of the accused given to the doctor. Independent of the said evidence, there is the credible testimony of PW2 to show that it was the appellant who hammered the deceased on his forehead and face leading to his death. The learned trial Judge who had the unique advantage of seeing the witnesses and assessing **Crl. Appeal No.867/2007** **20** their credibility had no difficulty in believing PW2 in support of the prosecution case. Sitting in the appellate jurisdiction, we are not inclined to take a different view on the evidence before Court. 19. What now survives for consideration is the offence which the appellant committed. We have our own reservations in endorsing the conclusion reached by the trial Judge that the appellant is guilty of murder punishable under Section 302 IPC. It was in the course of playing cards that an altercation resulting in a scuffle arose between the appellant and the deceased. It was in the course of the said scuffle that the appellant unprovokedly struck the deceased with MO1 hammer on the forehead and face resulting in the deceased sustaining loss of four teeth then and there and fracture of the skull exposing the brain matter within. As observed by the Apex Court in **Pulicherla Nagaraju v. State of A.P.** (2006)11 SCC 444) the intention to cause death can be gathered generally from a combination of a few or several of the following among other, circumstances. **Crl. Appeal No.867/2007** **21** - i. Nature of the weapon used. - ii.Whether the weapon was carried by the accused or was picked up from the spot. - iii.Whether the blow is aimed at a vital part of the body. iv.The amount of force employed in causing injury. - v. Whether the act was in the course of sudden quarrel or sudden fight or free for all fight. - vi.Whether the incident occurred by chance or whether there was any premeditation. - vii. Whether there was any prior enmity or whether the deceased was a stranger. - viii.Whether there was any grave and sudden - provocation, and if so, the cause for such provocation. ix.Whether it was in the heat of passion. - x. Whether the person inflicting the injury had taken - undue advantage or had acted in a cruel and unusual manner. - xi. Whether the accused dealt a single blow or several blows. **Crl. Appeal No.867/2007** **22** 20. The Apex Court hastened to add that the above list of circumstances is not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. 21. Gauged by the above criteria, it can be said that the accused did not enter the recreation club armed with any weapon. MO1 hammer was picked up from the spot itself. The blow was also not made at the vital part of the body though the injury had resulted in fracture of skull affecting the brain. It was in the course of a sudden quarrel and there was no premeditation nor any prior enmity proved between the accused and the deceased. 22. Every person is presumed to know the reasonable and probable consequences of his act. The appellant cannot plead ignorance of the fact that the blow which was administered by him on the forehead and on the face with a weapon like MO1 steel hammer was not likely to cause the death as a consequence of the fracture of the skull and **Crl. Appeal No.867/2007** **23** exposure of the brain matter. He should be presumed to have intended the consequence of the injury which he inflicted which in the normal course was likely to cause death. 23. Hence the above act though will not fall under Section 300 IPC so as to be punishable under Section 302 IPC, it will certainly fall under the 1[st] part of Section 304 IPC. The conviction recorded by the court below for the offence punishable under Section 302 IPC cannot therefore be sustained and is accordingly set aside. The appellant is found guilty of the offence of culpable homicide not amounting to murder punishable under part I of Section 304 IPC. The conviction is altered as above. For the said conviction under Section 304 Part I IPC, the appellant is sentenced to rigorous imprisonment for 8 years and to pay a fine of `10,000/-(Rupees ten thousand only). On default to pay the fine he shall suffer simple imprisonment for six months. **24** ## **Crl. Appeal No.867/2007** In the result this appeal is allowed in part as above altering the conviction entered and modifying the sentence imposed. **Dated this the 5[th] day of August, 2011** ## **V. RAMKUMAR, JUDGE** **P.Q.BARKATH ALI, JUDGE** _ani/sj_