Jayachandran Nair @ Lalan s/o Narayana Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935 ## **CRL.A.No. 696 of 2009 (B)** AGAINST THE JUDGMENT IN SC 897/2005 OF THECOURT OF THE ADDITIONAL SESSIONS JUDGE (FAST TRACK-I), THIRUVANANTHAPURAM DATED 21-02-2009 APPELLANT/ACCUSED:: ------------------------------------------ JAYACHANDRAN NAIR @ LALAN S/O.NARAYANA PILLAI, KRISHNAVILAKATHU VEEDU, PLAKKODE ANAKUDI MURI, KALLARA VILLAGE. BY ADVS.SRI.S.GOPAKUMARAN NAIR (SR.) SRI.M.CHANDRA BOSE RESPONDENT/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ## **---------------------------------------------------Crl. Appeal NO.696 OF 2009 B** **---------------------------------------------------Dated this the 18[th] day of October, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The appellant was found guilty for the offence under Section 302 of the Indian Penal Code in S.C.No.897 of 2005 on the file of the Court of the Additional Sessions Judge (Fast Track Court I), Thiruvananthapuram. Accordingly, the appellant was sentenced to suffer imprisonment for life and to pay a fine of `50,000/-. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for three years. It was also held by the trial court that if the fine amount is realised, it will be paid to the legal heirs of the deceased (Madhavankutty). 2. The prosecution case is the following: On 3.3.2003 at about 5.15 pm, the accused had a quarrel with PW5 Karunakaran at Plakode Junction, near the shop of PW3 Karunan. PW5 ## **Crl. Appeal NO.696 OF 2009 B** :: 2 :: Karunakaran was the friend of Madhavankutty, the deceased. Madhavankutty questioned the accused about that incident and a quarrel took place between the accused and Madhavankutty. Madhavankutty challenged the accused that he would see to it later. At about 7 pm, the accused and Madhavankutty met at Plakode Junction and a quarrel ensued. It was alleged that the accused bodily lifted Madhavankutty and threw him on the ground. Madhavankutty fell down on the road and his head struck on the road. The accused kicked Madhavankutty on different parts of his body repeatedly. Blood oozed out from the nose and ears of Madhavankutty. At that stage, the people who were available in the junction intervened and the accused ran away. Madhavankutty was taken to the hospital by PW2, Velayudhan Pillai (son of PW1) and others. Madhavankutty died at 2.10 am on 4.3.2003 while undergoing treatment at the Medical College Hospital, Thiruvananthapuram. 3. Ext.P1 First Information Statement was given by PW1 at 7.30 am on 4.3.2003, which was recorded by the Sub Inspector of Police (PW13) and Ext.P1(a) First Information Report was ## **Crl. Appeal NO.696 OF 2009 B** :: 3 :: registered. PW14, Circle Inspector of Police, conducted the inquest and prepared Ext.P4 inquest report. After investigation, PW14 laid the charge. PW9 conducted the postmortem examination and submitted Ext.P6 postmortem certificate. The ante-mortem injuries noted on the body of the deceased in Ext.P6 postmortem certificate are the following: ## “INJURIES (ANTEMORTEM) : 1. Abrasion 2 x 1 cm on the outer aspect of right lower eyelid 4 cm outer to the inner angle of eye. 2. Abrasion 1.5 x 1.5 cm on the front of right ear lobule. 3. Contusion 3 x 2.5 x 0.2 cm on the front of right ear lobe 1 cm below its top. 4. Abrasion 1.5 x 1 cm on the upper border of left ear lobe 1 cm outer to its root. 5. Abrasion 1.5 x 1 cm on the front of left ear 2 cm outer to the root and 1.5 cm below its top. 6. Contusion 3.5 x 2.5 x 0.2 cm on the front of left ear just below its top. 7. Contusion 6 x 2 x 1 cm involving the whole of upper lip with a laceration 1 x 0.5 x 0.3 cm on the inner aspect in midline. Teeth Nos.11, 21 and 22 were missing. The sockets were infiltrated with blood. ## **Crl. Appeal NO.696 OF 2009 B** :: 4 :: 8. Contusions 2.5 x 1.5 x 0.5 cm and 3 x 1 x 0.3 cm on the inner aspect of left side of lower lip, 1 cm apart, the inner one being just outer to midline. 9. Contusion 3 x 3 x 1 cm on the left side of tongue 2 cm behind the tip, 0.5 cm outer to midline. 10. Laceration 4 x 1 x 0.5 cm on the under surface of tongue, 1.5 cm behind the tip. 11. Contusion of scalp 8 x 5 x 1 cm on the right side of head, just above the top including the temporalis muscle. 12. Contusion of scalp 8 x 4 x 1 cm on the left side of back of head, just behind the ear. 13. Contusion of scalp 14 x 9.5 x 1.2 cm on the left side and top of head, just above the ear including the temporalis muscle. Lacerations were seen on the tip of left temporal lobe (2.5 x 1.5 x 0.5 cm) and on the back aspect of corpus callosum (2 x 1 x 0.3 cm). Contusion was seen on the inner surface of right parietal lobe (3 x 0.7 x 0.5 cm). Intracerebral haematoma was seen on the tip of right frontal lobe (1.5 x 0.5 x 0.5 cm). Multiple irregular haemorrhages were seen in the brainstem. Subdural haematoma 2 x 2 x 1 cm was seen overlying the tip of left temporal pole. Bilateral subdural and subarachnoid haemorrhages were seen. There were flattening of gyri and narrowing of sulci. 14. Contusion 7.5 x 4.5 x 1.2 cm on the under chin just behind the lower margin of lower jaw bone. ## **Crl. Appeal NO.696 OF 2009 B** :: 5 :: 15. Contusion 7 x 2 x 0.4 cm, oblique on the right side of front of neck, its lower inner end being 4 cm outer to midline and 5 cm below jawbone. Contusion was seen in the right pyriform fossa over an area 2 x 1.5 x 0.5 cm. Hyoid bone was seen fractured at the junction of body and greater horn on the right side. Left side of the inner surface of thyroid cartilage showed an oblique fracture 1.5 x 0.2 x 0.2 cm. Infiltration of blood was seen on the front of neck in the interstitial plane over an area 12 x 5 x 0.2 cm. 16. Abrasion 0.5 x 0.3 cm on the right side of front of chest, 5 cm outer to midline and overlying the collarbone. 17. Abrasion 9 x 5 cm on the left side of front of chest, 12 cm outer to midline and just below collar bone. Underneath there was contusion over an area 6 x 4 x 0.4 cm. 18. Contusion 12 x 5.5 x 0.7 cm on the left side of front of chest, 9 cm outer to midline and 12.5 cm below collarbone. III - VIII ribs on left side were seen fractured at their angles, IV & V ribs were fractured at the front aspects also. Contusions were seen on the interlobar fissure (6.5x 1.5x0.3 cm) and on the back aspect of lower lobe (1.5x0.5x0.3 cm) of left lung. Contusion 3.5x2.5x0.3 cm on the outer surface of inferior venacava 1 cm above its termination in right atrium. Left chest cavity contained 250 ml of blood stained fluid. Left lung was partially collapsed. 19. Contusion 7x5x0.3 cm on the upper surface of left side of diaphragm. ## **Crl. Appeal NO.696 OF 2009 B** :: 6 :: 20. Contusion 9 x 9 x0.7 cm on the right side of under surface of diaphragm. Laceration of liver was seen on the back aspect at the junction of right and left lobes, 3.5 cm below the upper border (1 x 0.7 x 0.5 cm). 21. Contusion of whole of right adrenal gland. Perirenal haematoma was seen around the right kidney (7x4.5x0.3 cm). 22. Contusion 4x4x0.3 cm around the fixed loop of intestine. Peritoneal cavity was smeared with blood. 23. Multiple small abrasions over an area 5x4 cm on the right side of back of trunk, 7 cm below top of shoulder and 8 cm outer to midline. 24. Abrasion 1x0.5 cm on the left side of back of trunk 12.5 cm below shoulder and 10 cm outer to midline. 25. Multiple small abrasions over an area 6x2.5 cm on the back of trunk, 12 cm above natal cleft. 26. Graze abrasion 10x4.5 cm on the back of right arm its lower extent 4 cm above elbow. 27. Contusion 2x2x0.5 cm on the outer aspect of right elbow. 28. Multiple small abrasions over an area 7x2.5 cm on the back of right forearm, its upper extent being 7.5 cm below elbow. 29. Abrasion 0.5x0.5 cm on the back of right forearm, 16 cm below elbow. ## **Crl. Appeal NO.696 OF 2009 B** :: 7 :: 30. Abrasion 0.5x0.2 cm on the inner border of right forearm, 1 cm above wrist. 31. Contusion 3x2x0.5 cm on the front of right hand, 1 cm above the root of thumb. 32. Contusion 3x2.5x0.4 cm on the front of right hand, 1 cm above injury No.31. 33. Multiple small abrasions over an area 7x5.5 cm on the back and outer aspect of left elbow. 34. Multiple small abrasion over an area 5x2 cm on the back of left forearm, 6 cm below elbow with a contusion underneath. 35. Abrasion 0.7x0.5 cm and 0.5x0.5 cm, 2.5 cm apart and one above the other on the front of right knee. 36. Surgical sutured intercostal drainage wound 3.2x1 cm, oblique on the left side of trunk, its lower front end 12.5 cm below armpit. Air passages contained mucoid fluid. Lungs were pale. Subendocardial haemorrhage was seen in the left ventricular wall. Stomach was half full with blackish material, a few soft rice, chilly seeds, green chilly pieces, onion and other unidentifiable food materials with a sour smell, mucosa pale. Spleen was shrunken. Urinary bladder was empty. All other internal organs were pale, otherwise normal.” In Ext.P6, the opinion as to cause of death was shown thus: “Death was due to blunt injuries sustained to Head, Neck, Chest and Abdomen.” ## **Crl. Appeal NO.696 OF 2009 B** :: 8 :: 4. On the side of the prosecution, PW1 to PW15 were examined and Exts.P1 to P13 were marked. 5. PW1 is a relative of the deceased. At the time of his examination, he was aged 77. PW1 stated that he saw the incident and that the accused and Madhavankutty had a tussle near the shop of PW1. The accused lifted Madhavankutty and threw him on the road. Thereafter, the accused kicked the deceased on three occasions. The accused remained near Madhavankutty. At that time, people assembled and the accused went away. 6. PW2 (Noushad) is another eye witness to the incident. He had gone to the shop of PW1 to purchase goods. He heard a quarrel near the shop and he saw the accused and the deceased quarrelling with each other. PW2 also narrated the incident of the accused lifting the deceased and throwing him on the road and kicking him on several parts of his body. PW2 stated that nobody went near Madhavankutty on account of the fear towards the accused. PW2 stated that when three or four persons went near the ## **Crl. Appeal NO.696 OF 2009 B** :: 9 :: accused, they were driven away by the accused. Thereafter, they again approached the accused with sticks and then he ran away. Thereafter, PW2 and others took Madhavankutty to the hospital. 7. PW3 (Karunan) runs a pan shop near the place of incident. He saw Madhavankutty and PW5 (Karunakaran) at about 5 pm. PW3 stated that Karunakaran and the accused talked in Hindi and a scuffle ensued between them. Madhavankutty intervened and rescued Karunakaran. The witness stated that Madhavankutty questioned the accused about the incident and stated that he would come back again after going home. The accused accepted that challenge. By about 5.45 pm, the accused came to the place as a pillion rider of a bike. PW3 stated that at about 6.30 pm, he heard a sound of beating and at that place the accused and Madhavankutty were standing. A scuffle ensued between Madhavankutty and the accused and they fell down. PW3 did not support the prosecution case that the accused lifted Madhavankutty and threw him on the road. Therefore, he was declared hostile to the prosecution and he was cross examined. ## **Crl. Appeal NO.696 OF 2009 B** :: 10 :: 8. PW4 (Vidhyadharan Nair) saw Madhavankutty lying down on the road and the accused kicking him. When people assembled there, the accused ran away. The witness stated that when he saw Madhavankutty, he was in an unconscious stage and blood was oozing out from his mouth and head. In cross examination, PW4 stated that there was no scuffle between the accused and Madhavankutty and the accused kicked the deceased. 9. PW5 Karunakaran did not support the prosecution and he was declared hostile. He stated that he had no job in CRPF and he did not know Hindi. The wife of PW5 was examined as PW6. She also turned hostile. However, she stated that her husband (PW5) was working in CRPF and he knew Hindi. PW4 and PW5 were examined to prove the motive alleged by the prosecution. However, they did not support the prosecution on that aspect. 10. PW9, who conducted the postmortem, stated that the death of Madhavankutty was due to the blunt injuries sustained to head, neck, chest and abdomen. ## **Crl. Appeal NO.696 OF 2009 B** :: 11 :: 11. The accused was arrested on 4.3.2003 and he was examined by PW15 Doctor who issued Ext.P12 wound certificate. Twelve minor injuries were noted on the body of the accused. The cause of injury shown in Ext.P12 is that a group of people chased the accused and he fell down on 3.3.2003 at about 8 pm. 12. The accused stated in the statement under Section 313 of the Code of Criminal Procedure that he did not sustain any injuries. He narrated the incident as follows: He went to Plakode Junction after 7 pm on 3.3.2003. At that time, Madhavankutty gave him a blow and pushed him to the ground. Madhavankutty knew judo/karate. Madhavankutty also threw him on the road. The accused tried to escape. Madhavankutty chased him. When the accused reached near the house of Gopinathan Nair, Madhavankutty fell down on the granite stones heaped there. There was no light at that place. A group of people came running at that place. The accused went to his house. On the next day morning, when he was about to go to hospital, police arrested him. The accused also stated that when he was taken to the hospital, he stated to the Doctor that he was beaten by Madhavankutty. ## **Crl. Appeal NO.696 OF 2009 B** :: 12 :: 13. The court below relied on the evidence of PW1 to PW4 and held that the prosecution proved the incident beyond reasonable doubt. The court below also took note of the answers given by the accused in the questioning under Section 313 of the Code of Criminal Procedure. In paragraph 22 of the judgment, the court below held thus: “22. Admittedly PW1 Velayudhan Pillai was conducting a grocery shop at Plakode Junction as on the southern side of chempankode road. He is a natural witness and he was there in the shop. He has spoken about the occurrence. PW2, Noushad has also supported the prosecution case. His evidence also falls in the same line. PW3 Karunan is also admittedly conducting a shop near the place of occurrence and he has also spoken about a part of the occurrence. PW4 is a person reached the junction at that time. He has also spoken about the occurrence. Thus all the witnesses are uniform in their evidence that deceased and the accused entered into an altercation and Madhavankutty was seen lying on the ground. Except PW3, all others have spoken that the accused kicked Madhavankutty while he was lying on the ground ## **Crl. Appeal NO.696 OF 2009 B** :: 13 :: repeatedly. PW3 was not allowed to remain there as his father had asked him to go to home at the starting point of the occurrence, thus he left the place. Thus the evidence of all the witnesses and the explanation offered by the accused u/s.313 of Cr.P.C. points to the fact that none other than the accused faced Madhavankutty. A detailed description is there about the injury sustained to Madhavankutty in Point No.1 as all the internal organs have been damaged. He had sustained around 36 injuries and those injuries are not self inflicted injuries, the accused himself has no case. Thus the ocular evidence and medical evidence leads to the inevitable conclusion that the accused himself has inflicted those injuries on the body of Madhavankutty.” 14. The court below also considered the contentions put forward by the accused in great detail. The defence raised a contention and that contention was repeated in the Criminal Appeal also that the police had visited the scene of occurrence even before Ext.P1(a) was registered. The statement given to the police after admitting Madhavankutty in the hospital was suppressed and after the death of Madhavankutty another statement was recorded. This contention was negatived by the court below and it was held thus: ## **Crl. Appeal NO.696 OF 2009 B** :: 14 :: “25. I am not in a position to accept the said argument of the learned counsel for the accused. We have to scrutinize the evidence in the light of the prevailing social circumstance that nobody is bothered to see that such types of heinous crimes are reported to the police in order to set the law in motion, unless they are having any interest someway or other. Here, the police might have got information about the commission of such an offence in the night itself. The injured died in the night around 2.10 am. Even before that the police might have reached there to enquire about the matter. They might not have got any information sufficient to register FIR from a willing party stating the details. PW1 is an old man and his son had taken the injured to the hospital and after closing the shop he went to his house. His evidence shows that he came to know about the death of the party after 2'O clock in the night. For the reasons best known to him, either due to his old age or some other reasons he did not rush to the police station immediately. Hence the police was not expected to register a case on a cryptic message or information. Thus on the next day he had supplied statement to the police and it was seen registered around 7.30 am on 04.03.2003. According to the learned counsel, PW1 has spoken that he had supplied statement around 9 am in ## **Crl. Appeal NO.696 OF 2009 B** :: 15 :: cross-examination. According to me the time he has spoken before court might have been on the basis of a guesswork and as an old man much more relevance need not be given to that. Anyway in the morning itself the police had registered the FIR against the accused and it reached the court around 11 am itself. Hence the ruling relied by the learned counsel reported in 1993 Crl.Law Journal 3684 SC (State of Andhra Pradesh v. Punathi Ramulu and others) will not lend any support....” 15. Another contention raised by the accused was that there was no occasion for the eye witness to see the incident as there was no light at the scene of occurrence. It is clear from the site plan and the scene mahazar that an electric post is available there. The witnesses stated that at that time the light was on. In the shop of PW1, there were light. The oral evidence in the case as well as Ext.P5 scene mahazar and Ext.P10 plan would clearly show that there were lights very near to the place of occurrence and sufficient light was available for the witness to see the incident. 16. The learned counsel appearing for the appellant submitted that PW1 did not state anything in the First Information ## **Crl. Appeal NO.696 OF 2009 B** :: 16 :: Statement that PW2 was available in his shop at the time of occurrence and therefore, the evidence of PW2 cannot be relied on. PW1 runs a grocery shop. It cannot be assumed that there will be nobody in the grocery shop at about 7 pm. PW2 stated in evidence that he went to the grocery shop of PW1 and he saw the incident at that time. There is nothing to disbelieve the evidence of PW2. Even though the presence of PW2 is not specifically stated in the First Information Statement, that is not a ground to reject the clear and cogent oral evidence given by PW2. It cannot be said that the First Information Statement should contain all the details regarding the witnesses. 17. The learned counsel contended that PW9 did not state in evidence as to which injury was fatal and which injury resulted in the death of the deceased. PW9 stated the injuries noted during postmortem and further stated that the death was due to the blunt injuries sustained to head, neck, chest and abdomen. The suggestion in the cross examination of PW9 was that the injury to the head, neck, chest and abdomen mentioned in the postmortem certificate could be caused by a stampede due to rush of a crowd at ## **Crl. Appeal NO.696 OF 2009 B** :: 17 :: a time when the injured was lying on the ground and that too in darkness. A perusal of the postmortem certificate and the evidence of PW9 would clearly establish that Madhavankutty died as a result of the injuries sustained by him in the incident as alleged by the prosecution. 18. The learned counsel for the appellant also submitted that there was unexplained delay in registering the First Information Report. PW1 was aged more than 71 years on the date of occurrence. He went home after closing his shop. The injured was taken to the hospital. He died at 2.10 am on 4.3.2003. PW1 came to know about the death later. At 7.30 am on 4.3.2003, he gave the First Information Statement and, accordingly, Ext.P1(a) First Information Report was registered. It cannot be said that there was undue delay in giving the First Information Statement and in registering the First Information Report. 19. The court below came to the conclusion in paragraph 28 thus: ## **Crl. Appeal NO.696 OF 2009 B** :: 18 :: “28. Thus the prosecution has demonstrably proved beyond reasonable doubt that the accused, an ex-service man, had done to death the deceased and the injuries inflicted on him was so serious in nature that all the internal organs were damaged and the dead body bears 36 ante mortem injuries in addition of that. Thus the accused had intentionally killed Madhavankutty and hence I find this point in favour of prosecution.” On the said finding, the court below concluded that the accused committed the offence under Section 302 of the Indian Penal Code. 20. We have carefully considered the oral and documentary evidence adduced in the case. We agree with the findings rendered by the court below that the evidence available in the case is sufficient to hold that death of Madhavankutty was a homicidal one. The finding of the court below that the accused committed the offence is also supported by the evidence on record. On a careful consideration of the evidence on record, we do not find any ground to interfere with the well considered judgment of the court below that the accused committed the acts as alleged by the prosecution. ## **Crl. Appeal NO.696 OF 2009 B** :: 19 :: 21. The next question to be considered is whether the offence proved in the case would attract Section 302 of the Indian Penal Code. On a careful consideration of the evidence on record, we are unable to come to the conclusion that the prosecution established that the offence comes under firstly, secondly, thirdly and fourthly of Section 300 of the Indian Penal Code. Therefore, it cannot be said that the accused committed an offence under Section 302 of the Indian Penal Code. It is established that the accused committed the offence of culpable homicide not amounting to murder. Then the question is whether the offence comes under Section 304 Part I or II of the Indian Penal Code. It is proved that the accused inflicted bodily injuries on the deceased as alleged by the prosecution and that such injuries were likely to cause death. The accused lifted the deceased and threw him on the road. The deceased fell down and even thereafter the accused kicked him on various parts of his body. The accused is an ex-service man. From the nature of the injuries inflicted on the deceased and the facts and circumstances of the case, there can be no doubt that the accused intended to cause the said injuries and he did cause those injuries. Those injuries were ## **Crl. Appeal NO.696 OF 2009 B** :: 20 :: likely to cause death of the accused. Therefore, we are of the view that the appellant/accused committed the offence under Section 304 Part I of the Indian Penal Code. 22. In the facts and circumstances, we are of the view that it is not necessary to impose the punishment of imprisonment for life. It would be sufficient if the appellant/accused is sentenced to undergo rigorous imprisonment for a period of eight years. We do not think that no alteration is required in the fine imposed by the Court below and the direction given by the Court below for disbursement of the fine amount, in case it is realised. The default sentence in the absence of payment of fine also does not call for any interference. In the result, - i) The Criminal Appeal is partly allowed. - ii) The conviction and sentence of the accused under Section 302 of the Indian Penal Code are set aside. - iii) The appellant/accused is found guilty for the offence under Part I of Section 304 of the Indian Penal Code. ## **Crl. Appeal NO.696 OF 2009 B** :: 21 :: - iv) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of `50,000/- and, in default of payment of fine, to undergo rigorous imprisonment for a period of three years. - v) If the fine amount is realised, the same shall be paid to the legal heirs of the deceased Madhavankutty. - vi) The appellant/accused would be entitled to set off under Section 428 of the Code of Criminal Procedure. - vii) The court below shall issue a revised committal warrant. ## **(K.T.SANKARAN) Judge** ## **(M.L.JOSEPH FRANCIS) Judge** ahz/