Gopan @ Subi S/o Gopi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **CRL.A.No. 236 of 2013** **AGAINST THE JUDGMENT IN SC 43/2009 of ADDITIONAL SESSIONS COURT FAST TRACK (ADHOC) COURT, MAVELIKKARA DATED 21-12-2012** **APPELLANT/ACCUSED NO. 3** **GOPAN @ SUBI S/O. GOPI, PUTHENVEEDU, KANNAMANGALAM SOUTH MURI, KANNAMANGALAM VILLAGE.** **BY ADV.SRI.C.P.UDAYABHANU** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE, MAVELIKKARA POLICE STATION (CRIME NO. 1/07) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. MICHEAL JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.1.2018, THE COURT ON 11.4.2018 DELIVERED THE FOLLOWING:** **shg** ## **A.M. SHAFFIQUE & K.P. JYOTHINDRANATH, JJ.** ## **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.236 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of April, 2018** ## **J U D G M E N T** ## **Jyothindranath, J.** This jail appeal is filed against the judgment of conviction and sentence in SC 43/2009 on the files of the Additional Sessions Judge, Fast Track (Adhoc) Court, Mavelikkara. Originally there were four accused. After trial and appreciating the evidence, the trial court acquitted the other accused and convicted the 3[rd] accused/appellant herein for an offence under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months. 2. The facts necessary for consideration of this appeal is as follows: On 1.1.2007 at about 3 a.m while a musical-concert in connection with the festival of Kannamamgalam Major Mahadeva Temple was going on, the appellant herein attempted to enter the stage holding a balloon, which was Crl.A.No.236 of 2013 2 resisted by the deceased Leju and others and the appellant herein forcibly stabbed on the back of Leju. Leju succumbed to the injuries and thereby the appellant herein committed the offence. Prosecution altogether examined 14 witnesses and Exts.P1 to P25 were marked. MOs 1 to 6 were also identified. On the side of the defence, no witness was examined but Exts.D1 to D6 (a) were marked. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that even though, as per the prosecution case the incident occurred at a festival area, only one independent witness was examined in this case and the other eyewitnesses examined were mainly a close friend and relatives of the deceased. After appreciating the evidence of the said witnesses, the trial court did not fully accept their evidence and acquitted the accused other than the appellant herein. Even though the prosecution got a case that accused No.4 hit on the face of the deceased below his Crl.A.No.236 of 2013 3 left eye by using the bottom portion of a dagger, that aspect was disbelieved by the court. Thus, what comes out is that even the trial court has not fully accepted the version of the prosecution witnesses. The court below found that nonrecovery of the dagger allegedly held by A1 was fatal to the prosecution and prosecution failed to prove that there was common intention in between the accused. Thereon, the trial court acquitted the other accused. No appeal was filed by the State challenging the said finding. Thus, what comes out is that even the version now presented by the prosecution regarding the incident was not relied upon by the trial court to convict the appellant but it came to a conclusion that the fatal injury was inflicted only by the appellant on the deceased. Thus, when the prosecution witnesses were not presenting a truthful version before the court it is highly unsafe to convict this appellant for an offence under Section 302 of IPC, mainly relying upon the evidence of the very close relatives of the deceased. 4 Crl.A.No.236 of 2013 4. Alternatively the learned counsel argued before the court that even if the fact that the appellant herein inflicted the injury and caused the death stand proved, it will not be a murder but only a culpable homicide not amounting to murder. To buttress the said argument, the learned counsel submitted before this court that admittedly, as per the prosecution case, a festival was going on and that was also in a temple. The place of incident was an area wherein a musical-concert was going on. The further case of the prosecution is that the appellant herein tried to enter on the stage along with the other accused and when they were blocked by persons, including the deceased, in the heat of passion, without premeditation the deceased was stabbed by the appellant. If that is so, this will be a case which squarely comes under the purview of exception 4 of Section 300 of IPC. Thus, it will not be a murder, but only a culpable homicide not amounting to murder. 5. The learned Public Prosecutor submitted before Crl.A.No.236 of 2013 5 this court that in this case, it can be seen that the appellant was a brewer of illicit arrack. The sale of arrack was banned or prohibited in the festival area by the organizers of the function. Due to that reason, the appellant was having animosity towards the organizers, especially against the deceased. It is the case of the prosecution that a dagger was taken from the loin of the appellant and a stab injury was inflicted. The nature of the weapon and the fact that it was concealed at the loin to make use of it at an appropriate time is an indication of the intention to murder. Further, it can be seen that he used it at a vital part of the body. Hence the exception 4 under Section 300 of IPC will not be applicable in this case. 6. The evidence of the prosecution witnesses is as follows: PW1 deposed before the court that the deceased Leju was the secretary of the festival committee. He further deposed that the date of the incident was the 7[th.] day of the Crl.A.No.236 of 2013 6 festival of the Kannamamgalam Major Mahadeva Temple. Witness also deposed that there was police protection in connection with the festival and it is the further evidence of the said witness that on that day, there was a push and pull at an area where the temple mast situates and thereon one Abhilash sustained injuries. He was entrusted to the police. Thereafter the 3[rd] accused Gopan @ Subi tried to step on the stage with a baloon. At that time, a musical-concert was going on. It was blocked by the deceased Leju saying that “do not climb on the stage”. Then the first accused Sajesh as well as the 2[nd] accused Biju caught hold of Leju and at that time the appellant herein stabbed him with a dagger on the back of the body. The 4[th] accused Rajesh hit on the face below the left eye twice using the handle of the dagger in his hand. Leju fell down. His mother Sarasamma, sister Latha and brother Manoj were also present near the stage. They rushed towards Leju. The accused thereafter ran towards west. Even though some locals chased the Crl.A.No.236 of 2013 7 accused, they escaped towards the west. Leju was taken to V.S.M. Hospital in an autorickshaw. He further deposed that there was 1000 watts halogen bulbs in the stage. He further deposed that accused are vendors of illicit arrack. They also sold arrack on the festival days. It is also the evidence that on the 7[th] day of the festival, Leju had told the 3[rd] accused not to conduct arrack sale. Due to that animosity, Leju was stabbed. Witness identified the dagger used by the appellant herein as MO1. The dresses of the deceased were also identified by the witness. During cross examination he deposed that Leju was not involved in the incident wherein Abhilash sustained injures. The witness also deposed that Leju fell down about 3 – 3.30 metres away from the stage and there were so many people. His evidence was that “²øáÉÞ¿í ¼È¢ ©IÞÏßøáKÄá æµÞIí çÆÕØb¢ ” ¼àÕÈAÞV ©IÞÏßøáKßøßAÞ¢ . He further deposed that police ®ÜïÞÏß¿JᢠȿKí æµÞIßøáKá. It is also the evidence that “ ©ÄíØÕ¢ È¿JßÏ çÖ×¢ 7-Þ¢ ©ÄíØÕ¢ Õæø ÎÆc¢ ÕßxÄßÈí Crl.A.No.236 of 2013 8 ¦øáæ¿æÏCßÜᢠçÉøßW çµØí ¯¿áJáçÕÞ ®Kí ®ÈßÏíAí ¥ùßÏßÜï”. He went to the police station on his own will and he went at about 8 a.m. He also deposed that he came to know about the death at 5 a.m. and he further answered that æܼá Îøߺî ÕßÕø¢å¥ùßEßGí 3 ÎÃßAâV µâ¿ß µÝßEßGÞÃí çÉÞÜàØí Øíçx×ÈßçÜAí çÉÞÏÄí. 7. PW2 was the doctor who was the casualty medical officer of V.S.M. Hospital, Thattarambalam. He deposed before the court that the deceased was brought before him and injured was in a very critical condition. He gave first aid to the victim and referred the patient to a higher centre for further treatment. He referred the victim to Pushpagiri Medical College Hospital. He identified the intimation given to the police as Ext.P2. He deposed that the name of the injured brought before him was Leju aged about 30 years. He sustained a stab with knife on his back. He further deposed that the name of the persons who brought the injured was not noted. 8. PW3 is the younger brother of the deceased. He Crl.A.No.236 of 2013 9 was a coolie by profession. The incident was occurred on 1.1.2007. He further deposed that on 1.1.2007 at about 3 hours his brother Leju died. He sustained stab injury from the temple. On that day, there was festival in the temple. He further deposed that at about 2 a.m there was a musicalconcert. His mother, brother and sister went for the festival. While a girl was singing a song, the appellant Subi tried to enter the stage with a balloon. His deceased brother Leju was the secretary of the celebration on the 7[th] day of the temple festival. His brother blocked the appellant herein from entering the stage. Then the first accused Sajesh as well as the 2[nd] accused Biju caught hold of his brother and blocked him. Then the appellant Subi@Gopi took a dagger from his loin and forcibly stabbed on the back right side of Leju and then 4th accused Rajesh hit below the left eye of the deceased by using the handle of the said dagger. Thereafter he was taken in an autorickshaw to the V.S.M. Hospital. There, first aid was given and thereafter he was Crl.A.No.236 of 2013 10 taken to Pushpagiri Medical College. On the way, Leju died and the body was taken back to the V.S.M. Hospital. When the incident occurred there was light in the stage. He also identified the dagger and other MOs. 9. PW4 is the mother of the deceased. She also deposed that while they were attending a musical-concert in connection with the temple festival, the appellant Subi with a balloon tried to enter the stage. The deceased Leju blocked him. One Sajesh and Biju restrained Leju. Thereon Subi drew a dagger from his loin and stabbed. 10. PW5 is the sister of the deceased. She also deposed that the appellant herein stabbed the deceased while deceased was blocking the appellant from entering the stage. 11. PW6 deposed that while he was working as Senior Lecturer of Forensic Medicine at Medical College Hospital, Alappuzha, he conducted the postmortem examination on the body of Leju. He deposed before the court that the Crl.A.No.236 of 2013 11 ## following injuries were noted: 1. Incised penetrating wound 3.8 x 1.4 cm oblique on the right side of back of trunk, its upper inner square cut end 5 cm outer to midline and 21 cm below top of shoulder. Lower outer sharply cut and 8 cm out to midline. It entered the chest cavity by cutting the inter costal muscles between 9[th] and 10[th] costal cartilages, transfixed the lower lobe of right lung and terminated by making a cut 1.5 cm long on the back aspect of pericardium towards the base of heart. The right chest cavity contained 150 gm of fluid blood clots and air. The pericardial cavity contained 200 gm of fluid blood and clots. The wound track was directed forwards. Upwards and to the right for a total minimum depth of 11.5 cm. 2. Contused abrasion 1.2 cm x 0.5 cm on the left chest 4 cm outer to midline and 7 cm above jaw border. 3. Contused abrasion 1.3x1cm on the left chest 2 cm outer to injury No.2. He further deposed that the deceased died of stab injury sustained to chest and also deposed that MO1 can be the weapon. 12. PW7 deposed that he was an eyewitness to the incident and he deposed that while the musical concert was going on, the appellant herein tried to enter the stage with a balloon and the deceased Leju blocked him and Saji and Biju who were alongwith the appellant caught hold of the deceased and the appellant took a dagger and stabbed him. Crl.A.No.236 of 2013 12 Witness also deposed that Rajesh who was along with the appellant inflicted an injury below the eyes by using the handle of the dagger. A specific question was put (Q) ܼáÕßæa µâæ¿ ÎxÞæøCßÜᢠ©IÞÏßøáçKÞ? (A) ¥NÏᢠØçÙÞÆøßÏᢠØçÙÞÆøÈᢠ©IÞÏßøáKá. He further deposed that he was a friend of deceased and member of the festival committee and Leju was the secretary. PW8 is the member of the panchayat who was present at the time of inquest. He identified his signature and marked the inquest report as Ext.P4. PW9 deposed before the court that he was the village officer and he prepared the scene plan and marked the same as Ext.P5. PW10 deposed that he is the son of the sister of the deceased Leju. He was present while the scene mahazar was prepared. He identified his signature and marked the scene mahazar as Ext.P6. 13. PW11 is the S.I. who recorded the F.I. Statement and registered the FIR which was marked as Ext.P7. PW12 is the Circle Inspector of Police who investigated the crime. Crl.A.No.236 of 2013 13 PW13 also conducted part of the investigation. PW14 completed the investigation and filed the charge. 14. In this case, the incident occurred at a place where the temple festival was going on. The incident occurred in the early hours of the day. The prosecution examined the person who gave the First Information to the police as PW1. As per the evidence of PW1 he went to the police station and gave information. As per Ext.P7, it can be seen that it was registered at 8.15 hours. Admittedly the informant received the information regarding the death at 5 a.m. It is also the case of the defence that true picture of the incident was not recorded while the F.I statement was recorded. This contention is raised on the background that there was police protection provided to the temple festival. When an incident like this happened surely the policemen employed therein will be knowing the same and information will be passed to the police station. Those aspects will caste a shadow or suspicion on the trustworthiness of the F.I. Crl.A.No.236 of 2013 14 statement. The stand of the defence is that it cannot be given the sanctity of a document which came into existence at the earliest point of time. Surely an FIR is only a document which will move the investigation machinery. The argument seems to be that the sanctity ordinarily attached to a First Information cannot be attributed to this document. It is a fact that there is evidence by PW1 as well as that of PW11 to the effect that there was police protection. But surely there is nothing to show that an earlier information was received at the police station regarding the incident. Thus, with the available evidence it can be only held that there is no suppression of an earlier F.I statement. 15. Now, in this case it can be seen that prosecution is mainly relying upon the evidence of PWs 1, 3, 4, 5 and 7 which will show that the appellant herein stabbed the deceased with a dagger. The main argument advanced before the court is that the majority of the witnesses Crl.A.No.236 of 2013 15 examined by the prosecution are relatives ie. PWs 3, 4 and 5 are the brothers and mother of the deceased. Surely they are close relatives. But when a festival is going on and the prosecution case is that the deceased was the secretary of the festival committee of the 7[th] day function, naturally the mother and the brothers of the deceased as well as committee member will be present therein. Apart from this, relatives' evidence can be treated as corroborative to the evidence of PW1 as well as PW7 who are independent witnesses. PW1 as well as PW7 categorically gave a vivid picture of the incident occurred therein. As per the evidence, it can be seen that the appellant herein was moving towards the stage with a balloon while the musical concert was going on. He was blocked by the deceased, then the incident occurred. Even though the prosecution got a case that accused Nos. 1 & 2 restrained the deceased by catching hold of his hands and thereafter accused No.4 inflicted injury below the eye, those aspects were not Crl.A.No.236 of 2013 16 accepted by the court below and the said accused were acquitted. Regarding the said finding, it is a fact that there is no appeal. PW6 the doctor, categorically deposed before the court that injury No.1 noted in the postmortem report, Ext.P3 the total minimum depth was 11.5 cm and further deposed that the deceased died of stab injury sustained to the chest and on further examination of injury No.1 it will show that it entered the chest cavity by cutting the inter costal muscles between 9[th] and 10[th] ribs and terminated by making a cut of 1.5 cm on the back aspect of pericardium towards the base of heart. It was the fatal injury. There is oral evidence of PW1, 3, 5 and 7 that the said injury was inflicted by the appellant herein. The appellant herein inflicted the said fatal injury from behind which caused the death. As per the seizure mahazar, it can be seen that the weapon used is a dagger having a measurement of 34 ½ cm length and a width 3 ½ cm at the middle portion and having sharpness only on one side. This dagger was sent for Crl.A.No.236 of 2013 17 chemical analysis and as per chemical examination report, Ext.P25 it contained human blood. Thus, the nature of the weapon will give an indication regarding the intention of the user of the same. If such a weapon was used on a vital area i.e on the back of the chest and by piercing the thoracic cavity which can enter the internal vital organs, the intention of the user of the weapon can be inferred. In this case a fatal injury was sustained to the deceased. That also causing injury to the heart. Without any doubt it can be said that it is a fatal injury and in ordinary course, it will cause death. Place of injury, weapon and the force with which the weapon used will indicate the intention of the appellant to cause such an injury which is sufficient to cause death. Thus, what comes out is that the prosecution succeeded in proving the ingredients of Section 300 of IPC. The only point now to be considered is regarding whether the offence committed will come under any of the exceptions available under Section 300 of IPC. Exception 4 of Section 300 reads Crl.A.No.236 of 2013 18 ## as follows: Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the explanation it is stated that it is immaterial in such cases which party offers the provocation or commits the first assault. 16. In this case when the facts are analyzed, this court has already came to a conclusion that even though a picture was presented by the prosecution that when the appellant tried to enter the stage, accused Nos.1 & 2 caught hold of his arms and accused No.3 inflicted injury on the back side of the deceased. But accused Nos.1, 2 & 4 were acquitted by the trial court by not accepting the case presented in this regard or by extending benefit of doubt. When the nature of the incident is not fully accepted by the trial court, now this court cannot come to a conclusion that the incident occurred as now deposed to by the witnesses, when the place of incident is very near to a stage where a musical-concert was going on. It can be further seen that as per the evidence of PW1, the victim fell down about Crl.A.No.236 of 2013 19 3 mtrs away from the stage. Then what comes out is that he has not climbed upon the stage and before that the incident occurred. It has also come out in the evidence of PW1 that the stab was inflicted from a place about ½ a mtr. away from where he fell down. From the evidence it can be only held that it was at least 2 mtrs away from the stage. If that be so, what comes out is that the appellant was moving therein with a balloon and the incident occurred therein and at that time, deceased was stabbed with a dagger by the appellant herein. At this juncture, it cannot be said that a premeditation was therein to inflict such an injury to the deceased by the appellant even though prosecution got a case that he was a vendor of illicit arrack, as practically no evidence was adduced to substantiate such a case. 17. I very carefully perused the evidence of PW11 who was the Sub Inspector who recorded the FIR in this case. During cross examination he was asked that FIS_W ÉùEßGáU æµÞ¿ßÎøºîáÕGßW Õºîí ©IÞÏÄÞÏß ÉùÏáKåØ¢ÍÕJßW ®æLCßÜá¢å crime register æºÏñßøáçKÞ. §Üï. and further when the Crl.A.No.236 of 2013 20 investigating officer was cross examined he further deposed that 1_Þ¢ dÉÄßæAÄßæø ºÞøÞÏçµØáUÄÞÏß ®æa ¥çÈb×ÃJßW æÕ{ßÕÞÏßGßÜï. Thus, what comes out is that there is nothing to show that there was premeditation except the presence of a dagger in his loin. But still, only because the dagger was present, it cannot be said that he was having premeditation to murder Leju. There is no positive evidence on record to come to a conclusion that such an intention was in his mind against the deceased even before the relevant point of time. It only proved by the prosecution that such an incident occurred that also while the appellant herein was dancing or trying to go to the stage area with balloon. At this juncture, it also relevant to note that even though the death was known to PW1 at 5 a.m and there was also police protection, the FIR was registered only at 8.15 a.m. Thus, after appreciating the evidence regarding the place of incident and the nature of the incident, it can be only held that it was without any premeditation. If the Crl.A.No.236 of 2013 21 infliction of injury was without any premeditation, whether the appellant acted in an unusual way is also a matter to be looked into to have the benefit of exception 4 under Section 300 of IPC. Here there is only one stab injury inflicted by the appellant herein, that also on the backside of the chest. Thus, it can be only said that the offender has not taken undue advantage or acted in a cruel or unusual manner. In this regard the decision of the Hon'ble Apex Court in **Sukhdev Singh v. Delhi State [2003 (7) SCC 441]** is also relevant. 18. Under the above circumstances, the appellant will be entitled for the benefit of exception 4 of 300 of IPC. If that is so, this is a case where an offence punishable under Section 302 of IPC is not made out. Thus, the offence will squarely comes under Section 304 Part I of IPC. Considering the place of incident and nature of the incident and all other attending circumstances the appellant is sentenced to undergo rigorous imprisonment for 10 years Crl.A.No.236 of 2013 22 and also to pay a fine of Rs.50,000/- with default simple imprisonment for one year. If the fine amount is realized it shall be paid as compensation under Section 357 (4) of Cr.P.C. to PW4 – mother of the deceased. With the above modification on the conviction and sentence side, this appeal partly allowed. Sd/- **A.M. SHAFFIQUE JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** shg/