Jacob @ Achankunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **CRL.A.No.179 OF 2016** **SC 235/2014 DATED 31-10-2015 OF ADDITIONAL SESSIONS COURT-I,KOTTAYAM** **CP 12/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,KOTTAYAM** **CRIME NO.1080/2013 OF Pampady Police Station , Kottayam** ## **APPELLANT/** **JACOB @ ACHANKUNJU, C.NO.522, CENTRAL PRISION, TRIVANDRUM-12** **BY ADV. ADV: JOJO. C.A. (STATE BRIEF)** ## **RESPONDENT/** **STATE OF KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA** **BY PUBLIC PROSECUTOR SMT.SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.179/2016 2 ## **JUDGMENT** ## **Dated : 9[th] October, 2020** A.Hariprasad J. 1. Appellant challenges the conviction and sentence imposed by the Additional Sessions Judge-I, Kottayam in S.C.No.235/2014 under Sections 323 and 302 of the Indian Penal Code (for short the IPC). 2. Prosecution case in brief is that appellant is the husband of PW2 Valsamma. PW2 was residing with her mother, Mariamma (the deceased) in a small house situated in three cents of land. The appellant also resided in the house since his marriage with PW2. It is the prosecution case that he used to quarrel with deceased Mariamma as she refused to transfer her share of property in his favour. On 16.12.2013 at 8. 00 pm, the appellant picked up a quarrel with his motherin-law and assaulted her with MO1 (firewood) causing many injuries including a fatal one revealed from Ext.P9 post-mortem certificate. After three hours of the incident, the Crl.A.No.179/2016 3 deceased was removed to Medical College Hospital, Kottayam and she was on medication in ICU till 23.12.2013, on which day she succumbed to the injuries sustained on her head. 3. Initially police registered a case against the appellant under Sections 323 and 326 IPC. On the death of Mariamma, the charge was altered to one under Sec.302 IPC. The accused was apprehended on 23.12.2013. After closing the investigation, final report was filed before the learned magistrate having jurisdiction. Thereafter it was committed to the Court of Session and the case was made over to the Additional Sessions Judge for trial and disposal. 4. 15 witnesses were examined on the side of the prosecution and 20 exhibits were marked. Ext.D1 is the document relied on by the defence. Material objects are MO1 to MO4. 5. Considering the entirety of evidence, the learned Additional Sessions Judge found that the appellant was responsible for Crl.A.No.179/2016 4 causing murder of his mother-in-law, Mariamma, by beating with MO1. He also caused hurt to PW2. Therefore he was convicted and sentenced under Sections 323 and 302 IPC. 6. Heard Sri.Jojo C.A., learned counsel appointed as State Brief and Smt.Sylaja, the learned Public prosecutor. 7. Learned counsel for the appellant contented that the conviction based on the sole testimony of PW2 is bad in law. According to him, PW2 cannot be relied on even going by the prosecution case, because she was a mentally unstable person and her testimony therefore cannot be relied on. Further, defence has a case that PW2 was responsible for causing death of Mariamma. Suggestions in that regard had been put to PW2 at the time of cross-examination. 8. Prosecution case is unfolded through Ext.P1 FIS given by PW1 Lissy, who is another daughter of the deceased. In Ext.P1 it is mentioned that she along with her husband came to the house where the deceased sustained injuries at the Crl.A.No.179/2016 5 hands of the appellant. She reached home at about 11 'O' clock in the night on 16.12.2013 on receiving a telephonic information. At that time, PW2 was found sitting by the side of Mariamma and weeping. Mariamma was lying on a bed motionless and she was bleeding. Immediately she was removed to Medical College hospital, Kottayam and admitted there. The averments in Ext.P1 has been fully supported by PW1 at the time of her examination. PW1 deposed that PW2 (wife of the appellant) is a feeble minded person. It has also come out in evidence that PW2's marriage with the appellant was a late marriage. It is the version of PW1 that the appellant was engaged in selling lottery tickets and he was not in cordial terms with PW2. In fact, he never stayed in the house along with PW2 and the deceased. He occasionally came and picked up quarrel with Mariamma demanding property. It is the specific version of PW1 that on the fateful night she got information over telephone that her mother was beaten up by the appellant and she was lying unconscious. Crl.A.No.179/2016 6 This consistent case of PW1 remains credible despite strict cross-examination on her. Defence case is that the appellant never used to go to Mariamma's house and from 1992 onwards he was living separate from PW2. This version is stoutly denied by PW2 saying that her second child was born after 1992. 9. PW2 is the sole eye witness to the incident. As mentioned earlier, she is the wife of the appellant. Both PW1 and 2 deposed that PW2 stayed with the deceased in a small house situated in three cents of land. It is also deposed to by PW2 that there were frequent quarrels between the appellant and the deceased on account of his claim for property. On 16.12.2013, according to the testimony of PW2, appellant picked up a quarrel with his mother-in-law at 8 'O' clock and beat her by picking up a piece of firewood. Indiscriminate beating unleashed on her resulted in her sustaining multiple injuries including a blow on her forehead which proved to be fatal. Despite cross-examination on this Crl.A.No.179/2016 7 witness, her version regarding the incident could not be discredited. Defence case that she picked up quarrel with her mother is denied by her. On a reading of PW2's evidence in toto, we find no reason for her to falsely implicate her own husband in the crime. 10. Now we shall refer to the medical evidence in this case. PW8 is the doctor who examined the deceased from Medical College Hospital, Kottayam on 17.12.2013 at about 1.50 am (night). The injuries noted by PW8 on Ext.P8 series of certificate are (i) punctured wound left front parietal region and (ii) contusion left wrist. Patient was unconscious. First version regarding the incident noted on Ext.P8 by PW8 is that the injury was caused to the victim by her son-in-law. This aspect deposed to by PW8 has not been effectively challenged in cross-examination. It is a settled principle in law that the first version of the incident seen in the wound certificate narrated immediately after the incident cannot be brushed aside unless it is established that it is a false Crl.A.No.179/2016 8 version. 11. PW9 conducted autopsy on the body of the deceased on 23.12.2013. Records would show that she survived in the hospital for about seven days. It has come out in evidence that she was admitted in ICU and was put on ventilator. Still her life could not be saved. Ext.P9 post-mortem certificate shows the following ante-mortem injuries : 1. Abraded contusion almost healed with epithelization on back of left forearm 7x4 cm transverse, 12cm below elbow. 2. Contusion on inner aspect of left elbow 10.5x5cm vertical. 3. Abraded contusion healed with epithelization on back of left forearm 4x1 cm, 5cm above wrist. 4. Abraded contusion on left frontal eminence 3x3 cm. Scalp contusion 15x15cm the skull intact. 5. Contusion on left deltoid dominance 9x9 cm. 6. Contusion on outer aspect of right upper arm 7x4 cm transverse, 16 cm above elbow line. 7. Contusion on inner aspect of lower lip on right side 2x2 cm. 8. Abraded contusion on left parietal eminence 3x3cm with scalp contusion underneath over an area of 6x6cm skull intact, laceration of left parietal lobe of brain 3x3x3 cm and laceration of under surface of right frontal lobe of brain 2x2x2 cm subdural and Crl.A.No.179/2016 9 subarachonoid haemorrhages seen on both sides of brain. The brain congested and flattening of gyri noticed. 12. PW9 candidly stated before the trial court that injury No.8 in Ext.P9 is sufficient in the ordinary course of nature to cause death. This aspect has not been effectively challenged in the cross-examination. Even after cross-examination, the testimony of PW9 remains firm and support the prosecution case that the victim died because of head injury. 13. PW3 supported the testimony of PW1 and PW2 by saying that he passed on the information regarding the incident to PW1 over phone. In fact, he came to know of the incident through one Thankachan, who is a neighbour of the deceased. However, it has come out in evidence that Thankachan died prior to trial and therefore, he could not be examined. Testimony of PW3 also render support to the prosecution case that the appellant was in the habit of picking up quarrel with the deceased demanding property. Crl.A.No.179/2016 10 14. PW4 Manoj also deposed that deceased Thankachan passed on the information regarding the incident to him. In fact, PW4 contacted PW3 Sunny and thereafter latter furnished the information to PW1. Testimony of all these witnesses support the prosecution case. 15. PW5 is a witness to Ext.P4 inquest report. PW6 is the Village Officer who prepared Ext.P6 site plan. PW7 is a freelance photographer who took nine photographs marked as Ext.P7 series. PW10 is the Secretary, Pambady grama panchayat who issued Ext.P10 certificate. All these evidence are very formal in nature and therefore not much discussion is required on them. 16. PW11 was the ASI, Pambady police station, who recorded Ext.P1 FIS stated by PW1 from Medical College hospital, Kottayam. PW12 was the ASI, Pambady police station, who registered the crime initially under Sections 323 and 326 IPC. PW13 conducted a part of the investigation and questioned PW2 and 3. He recovered material objects from Crl.A.No.179/2016 11 the place of occurrence. He submitted a report to delete Sec.326 IPC and to add Sec.302 IPC in the crime. 17. PW14 was the Circle Inspector of police who submitted the final report after the investigation of the case by PW15. PW15 took over investigation on 23.12.2013 immediately after the death Mariamma. He prepared Ext.P4 inquest report and had gone to take Ext.P7 series of photographs. He arrested the appellant on 23.12.2013. Ext.P12 series are the documents showing the factum of his arrest. The appellant was subjected to medical examination and obtained Ext.P13 certificate. He questioned the appellant and recorded his statement. While in custody, appellant confessed that he had left the club (MO1) in the kitchen and PW15 in the presence of the appellant, recovered MO1. The confession statement of the accused while in custody is marked as Ext.P15. Recovery of MO1 at the instance of the accused is proved by the testimony of this witness. 18. Learned counsel for the appellant argued that PW2 has no Crl.A.No.179/2016 12 case of PW15 effecting a recovery under Sec.27 of the Indian Evidence Act and therefore testimony of PW15 cannot be believed without any independent evidence. We are unable to accept this contention because the requirement in Sec.27 of the Evidence Act is that the discovery of a relevant fact has to be deposed to and PW15's deposition as to the discovery of a relevant fact remains credible. The unimpeached testimony of PW15 shows that MO1 was recovered from the place of occurrence at the instance of the appellant. More over, Ext.P20 chemical analysis report would show that MO1 was blood stained, although blood group is not clear from the report. 19. After completing the investigation, PW15 handed over further investigation to PW14 and he submitted the final report. On a perusal of the testimony of PW15, we are of the view that the investigation was fair and proper. 20. Learned counsel for the appellant contended that uncorroborated testimony of PW2 cannot be relied upon Crl.A.No.179/2016 13 since she was mentally unstable and also she might have been the culprit. These contentions cannot be accepted in the light of the evidence tendered by PW1 and 2 that there was no unsoundness of mind for PW2 except the fact that she was a feeble minded person. On an evaluation of the entire evidence, we find absolutely no reason to accept the defence case that PW2 herself could have caused the death of the victim. It has come out in evidence that there are two children in the wedlock between appellant and PW2, out of which the elder one was married away and the younger one is staying in an orphanage. In the background of these facts, we find no reason for PW2 to falsely implicate the appellant in the crime. 21. Learned counsel for the appellant strongly contended that the evidence on record is insufficient to find the appellant guilty of murder as defined under Sec.300 IPC. According to him, evidence establishes no offence on the part of the appellant. On an analysis of the entire evidence, we are Crl.A.No.179/2016 14 unable to accept this contention. 22. Relying on **Sudhakar v. State (AIR 2018 SC 1372)** learned counsel canvassed for the acquittal of the appellant. The facts in **Sudhakar's** case is totally different from the facts of this case. Therefore we are not able to apply the ratio to this case. 23. Learned counsel placed reliance on **Sita Ram v. State (Nct** **of Delhi) (AIR 2019 SC 3349** ) wherein Supreme court considered the interplay of Exception 4 to Section 300 IPC. In the facts of that case the Supreme Court altered the conviction of the accused from Sec.302 to one under Sec.304 Part-II. As mentioned above, the alteration of conviction and sentence was mainly based on appreciation of evidence regarding the occurrence and on revealing that a sudden fight without premeditation had occurred. In this case, the prosecution evidence clearly show that the appellant came to the house and picked up quarrel with the deceased and in the course of quarrel, he took a club and Crl.A.No.179/2016 15 attacked the victim. There is no evidence to support the appellant's case that the beating occurred after any provocation given by the victim. Therefore the above principle cannot be applied to this case. 24. The learned public prosecutor relied on **Paul v. State of Kerala (AIR 2020 SC 966)** contending that the appellant is not entitled to alter conviction to one under Sec.304 IPC because none of the Exceptions to Sec.300 IPC are attracted in this case. On going through Sec.300 IPC it can be seen that culpable homicide is murder, if the accused caused the death of the victim with an intention of causing death. In this case the evidence adduced by PW2 would not show that the accused had any intention to kill Mariamma. His only intention was to quarrel with her for property and to beat her up. Therefore, first limb of Sec. 300 is not applicable in this case. It is also come out in evidence that he beat the deceased with MO1 causing injury on the forehead and other parts of the body. Injury NO.8 on the Crl.A.No.179/2016 16 forehead proved to be fatal. We have no reason to hold that it was done with the intention of causing bodily injury as the appellant knows to be likely to cause the death of the person to whom the harm was caused. Similarly, it cannot be said to be done that the intention of causing bodily injury to the victim and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. So also, it cannot be said that he had an intention to inflict injury precisely on the head. If we go by the evidence of PW2, it can be seen that the victim fell down on receiving the first blow and thereafter he beat her indiscriminately. Fourth limb to Sec.300 IPC is relating to the knowledge of the fact regarding the probability of death. PW2 herself has deposed that the appellant had visited Medical College Hospital while the victim was treated there. Prosecution has no case that he has ever absconded after the incident. We are unable to find that he had an intention to kill her falling under any of the limbs under Sec.300 IPC. Having regard to the facts and Crl.A.No.179/2016 17 circumstances, we are of the view that the appellant is guilty of culpable homicide as defined under Sec.299 IPC and in the absence of attracting any of the limbs to Sec.300 IPC, we find him guilty of culpable homicide not amounting to murder punishable under Sec.304 Part I IPC. 25. Having regard to his age and also the fact that right from the date of his apprehension he is in custody, we sentence him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/-. In default of payment of fine, he shall undergo imprisonment for a further period of three months. He is entitled to get set off under Sec.428 IPC. We place on record on appreciation to Sri.Jojo C.A. for effectively conducting this case. Sd/- **A. HARIPRASAD JUDGE** Sd/- ## **M.R.ANITHA** ## **JUDGE** **Mrcs/9.10.**