Jaiby Jacob v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943** **CRL.A NO. 1367 OF 2006** **AGAINST THE JUDGMENT IN SC 780/2005 OF SESSIONS COURT,** ## **ERNAKULAM** **CP 32/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** ## **ERNAKULAM** ## **APPELLANT/ACCUSED 1:** JAIBY JACOB, S/O. JOSEPH, PADAMATTUMMEL VEEDU, YASHORAM NAGAR,, CHERANALLORE. BY ADV SRI.S.RAJEEV ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, (CRIME NO.38/04 OF CHERANALLORE POLICE STATION). BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.1367/2006 ## -:2:- J U D G M E N T Dated this the 15[th ] day of November, 2021 This appeal has been filed by the accused No.1 in SC No.780/2005 on the file of the Sessions Court, Ernakulam challenging the judgment dated 30/6/2006 convicting him u/s 326 of IPC. 2. Altogether three accused faced trial. The appellant, who is the first accused, is the son of the second accused. The accused No.3 is the cousin brother of accused No.1 and also his immediate neighbour. The incident pertaining to the crime took place at 9.30 p.m on 11/4/2004. Prior to that, on the same evening at 6.30 p.m., as well as at 7.30 p.m, there were two connected incidents. At 6.30 p.m, while PW2 Mr.Vineesh and his brother Mr.Vinod were going to their home, the brother of accused No.1 viz.,Mr. Lijo Paul and their three friends insulted PW2 by calling his nick name. PW2 informed this incident to his friends viz., Mr.Selvan, Mr.Ajesh (PW10), Mr.Shobi (PW3), Mr.Shoji, Mr.Febin and Mr.Baby John (the deceased). By 7.30 p.m, they Crl.Appeal No.1367/2006 -:3:- went and met the brother of the first accused and his three friends and asked about the said incident. There was a short altercation between them. By 9 o' clock, they got information through one Mr.Renjith that the brother of the accused No.1 and others were contemplating to prefer a complaint to the police. According to the prosecution, then by 9.30 p.m, the deceased, PW3, PW10 and Mr.Selvan went to the house of accused No.1 for compromising the issue. They met accused Nos.1 and 2. But they were not amenable for a settlement. While they were returning to their home, it is alleged that the accused Nos.1 to 3 attacked them with cricket stumps behind their back. It is specifically alleged that the first accused hit on the head of the deceased and he sustained serious injury on his head. After the incident, the accused ran away. The witnesses who witnessed the incident also ran away leaving the deceased in a pool of blood. Nobody attended the deceased till 11.15 p.m. According to the prosecution, one Mr.Joseph, a neighbor of the deceased, came to know that the deceased was lying in a pool of blood near the place of incident and he informed the matter immediately to Crl.Appeal No.1367/2006 -:4:- PW1, who is the father of the deceased. PW1 along with the nephew of the deceased rushed to the spot and took the deceased to nearby M.A.J. Hospital, Edappally from where he was referred to the Medical Centre Hospital, Ernakulam for expert treatment. 3. On 13/4/2004, PW12, Sub Inspector, Cheranelloor went to the Medical Centre Hospital, Ernakulam at 12.20 p.m and recorded the First Information Statement of PW1. It was marked as Ext.P1. On the basis of Ext.P1, PW12 registered crime against the accused u/s 307 r/w 34 of IPC. On the same day, at 6.10 p.m, the deceased succumbed to his injuries at the Medical Centre Hospital. Thereafter, Section 302 of IPC was added. PW11 took up the investigation on 13/4/2004. He went to the scene of occurrence and prepared Ext.P8 scene mahazar. On the next day, at 8.00 a.m, he conducted inquest on the body of the deceased at Medical Centre Hospital. Ext.P2 is the inquest report. He arrested the accused and also seized MO1 to MO3 cricket stumps allegedly used for the commission of the offence on the basis of the disclosure statement given by accused No.1 while in police Crl.Appeal No.1367/2006 -:5:- custody. He questioned the witnesses, completed the investigation and filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case to stand trial at the Court of Sessions. 4. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Sections 302 and 324 r/w 34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 12 and marked Exts.P1 to P17. MO1 to MO8 were identified. After completion of the prosecution evidence, the accused were questioned u/s 313 of Cr.P.C. They denied all the incriminating circumstances brought against them in the evidence. No defence evidence was adduced. Exts.D1 to D10 were marked on the side of the defence. 6. Considering the evidence on record, the court below found the first accused guilty for the offence punishable u/s 326 of IPC and he was convicted for the said offence. The court below found that the prosecution failed to make out an offence under Crl.Appeal No.1367/2006 -:6:- Sections 302 and 324 of IPC against the first accused. The court below further found the remaining accused not guilty for all the offences charged against them and accordingly they were acquitted. The accused No.1 was sentenced to undergo rigorous imprisonment for two years for the offence u/s 326 of IPC. Aggrieved by the said conviction and sentence, the accused No.1 preferred this appeal. 7. I have heard Sri.K.K.Dheerendra Krishnan, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that the evidence of PW2, PW3 and PW10 whose evidence were heavily relied on by the court below are interested witnesses loyal to the deceased and they could not have been relied on. The counsel submitted that the evidence of PW10 is full of contradictions and omissions. The counsel further submitted that there is a delay of three days in lodging the FIR Crl.Appeal No.1367/2006 -:7:- which is fatal to the prosecution case in the absence of reasonable explanation. The learned counsel also submitted that the accused is entitled to the protection of private defence. Lastly, the counsel added that, at any rate, the sentence imposed by the court below is excessive. 9. The prosecution heavily relied on the oral testimony of PW2, PW3 and PW10 and the recovery of MO1 to MO3 cricket stumps consequent to the confession statement of the first accused u/s 27 of the Evidence Act to prove the incident and to fix the culpability on the accused. Though the court below did not accept the evidence regarding recovery of MO1 to MO3, the court below believed the evidence of PW2, PW3 and PW10, the ocular witnesses, to base the conviction. 10. As stated already, the first incident was at 6.30 p.m. The evidence of the witness on record would show that at 6.30 p.m. there was an incident where the brother of the accused No.1 and his friends insulted PW2 by calling his nick name and he informed the said incident to his friends, the deceased, PW3, PW10 and others, who at 7.30 p.m, went and meet the brother of Crl.Appeal No.1367/2006 -:8:- the first accused and asked about the incident which took place at 6.30 p.m and questioned about it. It has also come out in evidence that there was an altercation between them. Both prosecution and defence more or less admit these two incidents which took place at 6.30 p.m and 7.30 p.m. Ext.P15 is the complaint given by the brother of the first accused to the police with regard to the incident at 7.30 p.m. The third incident took place at 9.30 p.m. The defence also to a certain extent admits the said incident though not in the fashion as projected by the prosecution. According to the prosecution, through one Mr.Renjith, PW3, PW10, Mr.Selvan and the deceased came to know that brother of the first accused was contemplating to file a complaint regarding the incident which took place at 7.30 p.m to the police and accordingly they went to the house of the first accused for a compromise. But, according to the defence version, PW3, PW10, the deceased and Mr.Selvan armed with weapon like iron rod went to the house of accused No.1 and assaulted accused Nos.1 and 2 with iron rod. Ext.D7 would show that pertaining to the said incident, an FIR was lodged against the Crl.Appeal No.1367/2006 -:9:- deceased, one Mr.Selvan, Mr.Shoji and Mr.Kannan as Crime No.37/04. The said crime was registered on the same day at 10.15 p.m under Sections 447, 341, 294(b), 323 and 324 r/w 34 of IPC. It is submitted at the Bar that the said case ended in acquittal after trial and it has become final. 11. According to the prosecution, initially PW3 and PW10 along with others went to the house of the first accused for a compromise and after a short while PW2 also went there. PW3 and PW10 consistently gave evidence that when they reached in front of the house of the first accused, the first accused and his father came out of the house and the request made by them to compromise the issue was turned down by the accused. Then, there ensued altercation. They further deposed that thereafter they returned. But the accused Nos.1 to 3 came behind them and the first accused gave a hit on the head of the deceased with a cricket stump and when he fell down, the second accused also assaulted him at his thigh and third accused on his face. Thereafter, all the accused ran away from the place. PW2 deposed that he reached the place in the course of attack and Crl.Appeal No.1367/2006 -:10:- witnessed it. PW2 also spoke about the earlier incident transpired on that day which led to the incident at 9.30 p.m. He deposed that, initially PW3, PW10, the deceased and Mr.Selvan went to the house of accused No.1 for compromise talk and since they did not return after sometime, he also went to the house of the accused No.1 in search of them. When he reached at a distance of 10 to 15 metres from the house of the first accused, he found PW3, PW10, Mr.Selvam and the deceased coming back from the house of the accused No.1 and the accused Nos.1 to 3 following them. He added that the first accused assaulted the deceased on his head with a cricket stump and the remaining accused beat him on other parts of the body. 12. PWs 2, 3 and 10 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 that the first accused attacked the deceased and inflicted injury on his head with a cricket stump. They gave reliable, consistent and credible version of the crime and their evidence inspires Crl.Appeal No.1367/2006 -:11:- confidence. The learned counsel for the appellant pointed out certain contradictions and omissions in their evidence. Marginal variations, slight contradictions and insignificant omissions are bound to occur when witnesses give evidence after a lapse of time. I could not find any vital contradictions or material omissions in the evidence of PW2, PW3 and PW10 affecting the prosecution case. They clearly deposed the manner in which the accused assaulted and attacked the deceased, the nature of weapon used by them and parts of the body of the deceased whereupon the injuries were inflicted by the accused. Therefore, I hold that the evidence of PW2, PW3 and PW10 could be safely relied on to prove the incident and to fix the culpability on the accused. 13. The evidence of ocular witnesses gets corroboration from the medical evidence of PW5 and PW6. PW6 is the doctor who treated the deceased at the Medical Centre Hospital, Ernakulam. Ext.P4 is the wound certificate issued by him. PW5 is the doctor who conducted autopsy on the body of the deceased and issued Ext.P3 postmortem certificate. PW6 on his Crl.Appeal No.1367/2006 -:12:- examination found the injuries on the body of the deceased and recorded in the wound certificate. Thus, the medical evidence also supports the prosecution case. 14. The learned counsel for the appellant vehemently argued that though the incident was taken place on 11/4/2004 at 9.30 p.m, the First Information Statement was recorded at 12.10 p.m and the FIR was registered at 2.30 p.m. on 13/4/2004. The learned counsel submitted that immediately after the incident, at 10.15 p.m. itself, the FIR against the deceased and his friends was registered. The learned counsel further pointed out that PW1 deposed that police came to the hospital on 12/4/2004 and took his statement. The learned counsel further pointed out that the close friends of the deceased who had admittedly witnessed the incident were aware of the fact that the deceased sustained serious injury on 11/4/2004 itself. Still, there was a delay of two days. The counsel added that the accused is entitled to the benefit of the said delay especially in the absence of a proper explanation. I cannot subscribe to the said argument. It is settled that mere delay is not fatal. The delay becomes fatal only in a Crl.Appeal No.1367/2006 -:13:- case where there is absence of explanation and there is doubt as to the genesis or genuineness of the prosecution case. It is clear from the evidence on record that the deceased sustained serious head injury in the incident and he was unconscious immediately after the assault. When he was taken to the hospital, he was in an unconscious stage. PW1 deposed that he was not aware how did the deceased sustain injury. The evidence given by PW1 that police came to the hospital on 12/4/2004 and took his statement can only be a mistake. The evidence on record would show that the statement was recorded on 13/4/2004. It is true that there is no evidence as to who informed the police. Still, there is nothing on record to show that there was any delay on the part of PW1 to inform the incident to the police for the reasons stated above. That apart, I have already found that the prosecution has established clearly the genesis of the occurrence. Hence, I am of the view that the delay has been explained by the prosecution. 15. On careful examination of the entire evidence on record, I have no hesitation to come to the conclusion that the prosecution has successfully established that the accused had Crl.Appeal No.1367/2006 -:14:- assaulted and inflicted injuries on the body of the deceased who later on succumbed to the injuries at the hospital. 16. The appellant in the alternative took the plea of right of private defence. The learned counsel for the defence Sri.Dheerendra Krishnan vehemently argued that the evidence on record would clearly show that the incident took place in front of the house of the first accused and that there was altercation between the accused on the one hand, and the deceased, PW3, PW10 etc,. on the other hand and the father of the accused No.1 was assaulted by the deceased with an iron rod and under the apprehension of further assault on his father, he in the process of protecting his and his father's life, has made an assault even if the prosecution version is accepted in toto. The learned counsel further submitted that the evidence on record establishes a free fight and the deceased and his men were aggressors. The learned counsel relied on the following decisions in support of his argument: (i) _**George Dominic Varkey v. State of Kerala**_ (1971 KHC 83) Crl.Appeal No.1367/2006 ## -:15:- - (ii) _**Puran Singh v. State of Punjab**_ (1975 KHC 197) - (iii) _**Wassan Singh v. State of Punjab**_ (1996 KHC 1394) - (iv) _**James Martin v. State of Kerala**_ (2004 KHC 97) - (v) _**Darshan Singh v. State of Punjab and Another**_ (2010 KHC 4032) - (vi) _**Sukumaran v. State Rep. by the Inspector of Police**_ (2019 KHC 6291) (vii) _**Lalu Joseph v. State of Kerala**_ (2020 KHC 196) 17. Per contra, the learned Public Prosecutor submitted that this is not a case where the plea of right of private defence can be pressed into service at all. 18. The right of self defence is a very valuable right u/s 96 of IPC. It provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression “ _right of private defence_ ”. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and Crl.Appeal No.1367/2006 -:16:- circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. Sections 100 to 106 of IPC define the extent of the right of private defence of body. If a person has a right of private defence of the body u/s 97, that right extends u/s 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of assault. Sections 102 and 105 of IPC deal with commencement and continuance of the right of private defence of the body and of property respectively. The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, though the offences may not have been committed. The right lasts as long as reasonable apprehension of the danger to the body continues. 19. The Apex Court has consistently held that the right of private defence extends the killing of the actual potential assailants when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the sixth Crl.Appeal No.1367/2006 -:17:- clause of Section 100 of IPC. Under Section 105 of the Indian Evidence Act, the burden of proof is on the accused, who sets up the plea of self defence and in the absence of proof, it is not possible for the court to presume the truth of plea of self defence. However, the accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in civil case that the preponderance of probabilities is in favour of his plea. It is for the accused to place necessary material on record either by himself by adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. These are the dictums laid down by the Apex Court in the decisions cited by the learned counsel for the appellant and stated above. 20. When the above principles of law are applied to the facts of this case, I have no hesitation to come to the conclusion that there is nothing on record at least to probablise the case of the defence that the appellant did the act in exercise of the right of private defence. It is true that there is evidence to show that the deceased, PW3, PW10 and Mr.Selvan went to the house of the Crl.Appeal No.1367/2006 -:18:- first accused, questioned about the previous incident and there was altercation between them. There is also evidence to show that the deceased had criminal antecedents. But there is absolutely no evidence on record at least to probablise that the deceased and his men were aggressors and they were carrying the weapon and they assaulted the second accused which caused reasonable apprehension of death or grievous hurt to the accused. There is also nothing on record to show that the accused was in imminent and reasonable danger of losing his life or limb so as to justify the exercise of the right. Apart from registering Ext.D7 crime, there is nothing on record to show that the deceased PW3, PW10 and Mr.Selvan armed with weapons assaulted the accused, more particularly the second accused. The said case ended in acquittal also. That apart, PW2, PW3 and PW10 consistently gave evidence that when the deceased, PW3, PW10 and Mr.Selvan were returning from the house of the accused, the accused followed them and the appellant assaulted on the back side of the head of the deceased. This consistent evidence could not be successfully challenged. If the attack was Crl.Appeal No.1367/2006 -:19:- from the back, there was no question of entertaining any reasonable apprehension of death or grievous hurt to the body of the accused. This case also rules out the defence plea that in fact the deceased and his men were aggressors. That apart, the blow to the head which caused the death of the deceased was given by the first accused. There is no case for the defence that the deceased attacked the first accused. Even the defence case is that the deceased assaulted the father of the first accused with a weapon. When the ocular witnesses were examined, the defence case is that deceased, PW3, PW10 and Mr.Selvan went to the house of the accused and assaulted them and thereafter they went back. There is no case for the defence at that time that the accused attacked the deceased under the exercise of private defence when they attacked the father of the first accused with a weapon. There is overwhelming evidence on record to show that the vital injuries are inflicted on the deceased by the appellant even though there is no evidence to prove any premeditation or motive on the part of the accused. Therefore, I hold that the accused is not entitled to the protection of private defence. The Crl.Appeal No.1367/2006 -:20:- injury sustained by the deceased falls within the definition of Section 320 of IPC and it was proved to be caused by means of the weapons described u/s 326 of IPC. In these circumstances, I hold that the court below was perfectly justified in convicting the accused u/s 326 of IPC. 21. The next question is regarding the sentence. The learned counsel for the appellant submitted that at the time of the incident, the accused was only 22 years old and he was not involved in any other criminal case at all. The counsel submitted that even according to the prosecution case, the incident took place at the house of the accused and there is nothing on record to show that it was a premeditated act. The counsel pleaded that in these circumstances, the substantive sentence may be confined to till rising of the court and instead, compensation be awarded to the victims. I find some force in the said submission. 22. Section 357 of Cr.P.C is an important provision empowering the court to award compensation to the victims of the crime while passing the judgment of conviction. In addition to conviction, the court may order the accused to pay reasonable Crl.Appeal No.1367/2006 -:21:- amount by way of compensation to the victim who suffered by the action of the accused. It is a measure of responding appropriate claim to the crime as well as reconciling the victim with the offender. The Apex court in _**Hari Kishan & Another v. Sukhbir Singh & Others**_ (AIR 1988 SC 2127) highlighted the necessity of invoking the power u/s 357 of Cr.P.C by the court. The Apex Court has recommended that the power u/s 357 of Cr.P.C is to be exercised liberally so as to meet the ends of justice in the better way. 23. As discussed in the preceding paragraphs, prior to the incident, there were two other incidents. The incident pertaining to the crime took place when the deceased and his friends went to the house of the accused to question/compromise the previous incident. There is evidence to show that there was an altercation between the parties. There is also evidence to show that a crime was registered against the deceased and his friends on the allegation that they assaulted the appellant and his father with iron rod. The First Information Statement pertaining to the said incident was given in prior point of time. The accused was not Crl.Appeal No.1367/2006 -:22:- convicted by the court below u/s 302 or 307 of IPC on the ground that there is nothing on record to show that there was an intention on the part of the accused to kill the deceased. However, the injury was caused on the vital part of the body of the deceased who later unfortunately succumbed to the injuries. There is nothing on record to show that it was a premeditated or calculated act on the part of the accused. It so happened in a free fight between the parties though a right of private defence is not legally attracted. In these circumstances, I am of the view that the appellant who was very young at the time of the commission of the offence deserves leniency in substantive sentence. The learned counsel for the appellant submitted that set off was allowed by the court below and the appellant was in judicial custody for 28 days during crime stage. Considering the entire facts and circumstances of the case, I am of the view that the substantive sentence can be confined to the said period he had already undergone. At the same time, adequate compensation can be ordered to be paid to the legal heirs of the deceased u/s 357 of Cr.P.C. The Apex Court in _**Hari Kishan**_ Crl.Appeal No.1367/2006 -:23:- (supra) has observed that the quantum of compensation may be determined by taking into account the nature of the crime, the justness of claim by the victim and the ability of the accused to pay and the compensation must be reasonable. The learned counsel for the appellant submitted that the appellant is an artist by profession. Considering these aspects, I am of the view that compensation of `1,00,000/- to the legal heirs of the deceased would be just and reasonable. 24. In the light of the above findings, the conviction passed by the Court below u/s 326 of IPC is confirmed. The sentence imposed by the court below is set aside, instead, the accused is sentenced to undergo simple imprisonment for 28 days, which he has already undergone. The accused is also directed to pay a compensation of `1,00,000/- to the legal heirs of the deceased, in default to suffer simple imprisonment for a period of two years u/s 326 of IPC. The learned counsel for the appellant submitted that the appellant may be granted two months' time to pay the compensation. The said time is granted. The appellant shall appear at the court below within a period of Crl.Appeal No.1367/2006 -:24:- two months from today and deposit `1,00,000/- (Rupees One lakh only) as compensation. On such deposit, the court below shall release the same to the legal heirs of the deceased. The appeal is allowed in part as above. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** Rp