Madhu v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 **CRL.A.No. 831 of 2012** AGAINST THE JUDGMENT IN SC 240/2009 OF THE COURT OF THE 1V ADDL.SESSIONS JUDGE (ADHOC-II), THODUPUZHA AGAINST THE ORDER/JUDGMENT IN CP 39/2008 of J.M.F.C., KATTAPPANA ## APPELLANT/ACCUSED: MADHU, S/O.KUTTAPPAN, MARUKATTU HOUSE, PARAKKADAVU BHAGOM, CHEMPAKAPPARA KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) ## RESPONDENT: COMPLAINANT: STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. - 682 031. BY PUBLIC PROSECUTOR SRI.NIKOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.2.2018, THE COURT ON 07-03-2018 DELIVERED THE FOLLOWING: ## **A.M.Shaffique & P. Somarajan, JJ.** **---------------------------------------------------Crl. Appeal No.831 of 2012 (D)** **---------------------------------------------------Dated this the 7[th] day of March, 2018** ## **JUDGMENT** ## **P. Somarajan, J.** The accused came up with this appeal against the judgment of conviction and order of sentence under Section 302 of the Indian Penal Code in S.C.No.240 of 2009, on the file of the Court of the IV[th] Additional Sessions Judge (Adhoc-II), Thodupuzha, dated 27.4.2012. 2. The nut shell of the prosecution case is that by 8.45 p.m. on 3.10.2004 the accused inflicted an injury on the chest of deceased Shaji Mathew after wordy altercation and scuffle and he succumbed to the injuries. Ext.P1(a) FIR was registered by PW33 Assistant Sub Inspector of Police based on Ext.P1 FIS. PW41, Circle Inspector of Police, Kattappana took investigation. The appellant/accused surrendered before the police with a knife on 7.10.2004. On the application of PW28 and PW29, the mother and wife of the accused, the investigation was taken over by CBCID, Idukki Division. PW34, PW36, PW42 and PW37 conducted investigation and lastly final report was submitted alleging offence against the accused under S.302 IPC. ## **Crl. Appeal No.831 of 2012** :: 2 :: 3. Altogether 42 witnesses were examined by the prosecution and got marked Exts.P1 to P40 and identified MO1 to MO4. The documents marked from the defence side comes to Exts.D1 to D7. The learned Sessions Judge found the accused guilty of offence punishable under S.302 IPC and convicted him thereunder and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rupees one lakh, in default to undergo rigorous imprisonment for two years. The above said judgment of conviction and order of sentence is under challenge. 4. Among the 42 witnesses examined by the prosecution, 25 witnesses were turned hostile to the prosecution. All the occurrence witnesses, except PW9, turned hostile to the prosecution, hence the lower court heavily relied on the oral testimony of PW9. 5. PW9 had given a vivid picture of what actually he had seen on the ill fated day. His presence in the place of occurrence is probable and acceptable as he was conducting a shop just opposite to the place of occurrence. The place of occurrence is the front side of the shop of one Thankan. He had seen the accused and the victim. There was some wordy altercation between the accused and ## **Crl. Appeal No.831 of 2012** :: 3 :: the deceased. Though the victim tried to go away from the place in his jeep, it was prevented by the accused resulting in a scuffle. PW2 Reji interfered in the scuffle. By that time, the accused fell down on the ground after receiving injury on his body. It was noticed by PW9 and others only on examination of his body which was lying face to the ground. Though PW2, PW7 and PW11 turned hostile to the prosecution their version regarding the genesis of the alleged incident and a scuffle between the accused and the victim gives sufficient support to the oral testimony of PW9. Nothing was brought out to show any instance of enmity or hatredness between PW9 and the accused. On the other hand, his version was found to be trustworthy and not tainted by any ill-will or ill-motive. The oral evidence tendered by PW2, PW7 and PW11 regarding the genesis of the incident and the scuffle between the accused and the deceased can be safely accepted though they were turned hostile to the prosecution subsequently. PW2, PW7 and PW11 are consistent with the genesis of the alleged incident, the presence of accused and the deceased and their exchange of filthy language. Nothing was brought to our notice to discard the oral evidence of PW9 and no omission or contradiction was also brought out during his examination. ## **Crl. Appeal No.831 of 2012** :: 4 :: 6. A strict scrutiny of the oral evidence tendered by PW9 would show that he had not seen the accused inflicting injury on the victim. What he had deposed is that there was a scuffle between the accused and the victim and that though one Reji tried to intervene, it did not serve any purpose. During the course of scuffle, which according to him lasted for several minutes, the victim fell down facing towards the ground and the accused ran away from the place of occurrence. Since the body was lying facing towards the ground, the injury was not visible to PW9 and others who came there and it was noticed only when the body was brought upside. This would safely rule out all other possibilities of having the said injury received other than through the accused. But at the same time, it is not clear who had brought the knife/weapon used for inflicting injury, for which absolutely no evidence was adduced by the prosecution. It may be a weapon brought by the accused or by the victim. It was argued by the appellant that there was no intention on the part of the accused to kill the victim. It was also brought out through the medical evidence that there is only a single injury sustained by the victim and taking support from the decisions of the Apex Court in _**Harjinder Singh v. Delhi Administration (AIR 1968 SC 867)**_ and _**Sudhakar v. State of Maharashtra (2012 KHC 4587)**_ ## **Crl. Appeal No.831 of 2012** :: 5 :: and the Madras High Court in _**Karuppannan and Another v. State (2007 KHC 6319),**_ it was argued that the offence, if any, proved would at the most come under the purview of S.304 Part II IPC. The injury sustained having a depth of 7.2 cm piercing through the lower lobe of left lung and terminated in the left lower chamber of heart would prima facie show the gravity of the injury sustained. 7. PW31, Associate Professor of Forensic Medicine, Medical College Hospital, Kottayam, conducted autopsy on the body of the victim and issued Ext.P28 postmortem certificate. The ante-mortem injuries noted in Ext.P28 postmortem certificate are the following: “Incised penetrating wound 3 x 1.5 cm obliquely placed on the front of left side of the chest. Its upper inner end showed splitting of tissues which was 28 cm below the inner end of collar bone. Other end was sharply cut. Left chest wall was penetrated by cutting the 4[th] rib and 4[th] intercostal space. Piercing through the lower lobe of left lung the wound was seen terminated in the left lower chamber of heart. Direction of the wound was backwards, downwards and to the left. Total minimum depth was 7.2 cm. Pericardial cavity contained 250 ml of blood and the chest cavity (left) contained 1.3 litres of blood with clots. Left lung was collapsed.” ## **Crl. Appeal No.831 of 2012** :: 6 :: 8. The deposition of PW31, the Doctor who conducted autopsy on the body of the deceased, and Ext.P28 postmortem certificate would sufficiently show that the injury sustained by the victim on his chest is a penetrating injury going both backwards, downwards and to the left with a minimum depth of 7.2 cm. The nature of injury, a penetrating wound going backwards, downwards and to the left with a minimum depth of 7.2 cm, would be an indication as to the nature of pressure applied by the accused while inflicting the injury. The injury was sustained by the victim during the scuffle with the accused. The opinion given by the Doctor that it could be possible by face to face attack would be relevant when read along with the fact that the penetrating injury goes both backwards, downwards and to the left. This would be an indication that the accused did not withdraw the knife/weapon even though the victim had tried to evade it during the scuffle. The penetrating wound going backwards, downwards and to the left would show that the blade of the knife pierced through the inner part of the body both backwards, downwards and to the left. It is a clear indication that the accused did not withdraw the weapon after causing the penetrating wound to the body of the victim but pressed hard so as to cause movement of knife to three directions. If there was an ## **Crl. Appeal No.831 of 2012** :: 7 :: immediate withdrawal of the weapon by the accused after inflicting the injury there may not be any possibility of having penetrating injury both backwards, downwards and to the left. If it is proved that the accused after causing penetrating injury on the chest of the victim did not withdraw the weapon but pressed hard so as to give full effect to the attack would be an indication of his intention to cause injury of the nature sustained by the victim and if it would be of the nature sufficient to cause death in its ordinary course, certainly the act would come under the purview of first and second limbs of S.300 IPC irrespective of the fact whether there was only a single injury or more. But, no expert opinion or medical evidence was adduced in that behalf by the prosecution by giving a chance of cross examination to the appellant so as to rule out causing of injury both backwards, downwards and to the left during the course of withdrawal of the weapon during a scuffle and hence the benefit of doubt goes to the accused. In the said circumstances, in the absence of a premeditated pre-planned commission of offence, inflicting a single blow on the victim, we are constrained to hold that there is failure on the part of the prosecution to prove the guilt of accused for the offence under S.302 IPC. The offence brought out would attract only S.304 Part II IPC. ## **Crl. Appeal No.831 of 2012** :: 8 :: 9. The accused being aged 49 and having a wife and a daughter and considering other mitigating and aggravating circumstances, we are of the view that a sentence of seven years' imprisonment would meet the requirement. In the result, the appeal allowed in part. The finding of guilt of accused under S.302 IPC and conviction and sentence thereunder are set aside. Accused is found guilty of offence punishable under S.304 Part II IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of seven years. The accused is entitled to set off of the period of pre-trial detention already undergone. **Sd/A.M. Shaffique Judge** **Sd/P. Somarajan Judge** ahz/