Manikandan 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 11TH DAY OF JANUARY 2013/21ST POUSHA 1934 CRL.A.No. 1326 of 2008 ( ) -------------------------- SESSIONS CASE NO.327/2005 ON THE FILE OF THE 1ST ADDL. SESSIONS JUDGE, THODUPUZHA. APPELLANT(S)/ACCUSED: ---------------------------------- MANIKANDAN, S/O.DIVAKARAN, CHENKARA CITY,CHENKARA KARA,KUMILY VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA 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 02-01-2013, THE COURT ON 11.01.2013 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Crl. Appeal No.1326 of 2008 ----------------------------------------------Dated 11[th] January 2013** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the accused in S.C.No.327 of 2005 on the file of the 1[st] Additional Sessions Court, Thodupuzha. 2. The prosecution case is briefly as follows : On 19.2.2004 at about 10.30 a.m., the accused Manikandan, who was in inimical terms with Pandyaraj @ Chendu (hereinafter called as 'Chendu') stabbed Chendu with a knife at the property belonging to HML estate, Moonkalar and due to the injuries sustained by him, he died on the way to the hospital. 3. Before the Additional Sessions Court, on the side of the prosecution, PW1 to P19 were examined and Exts.P1 to P19 and MO1 to MO10 were marked. On the defence side, Exts.D1 to D12 series were marked. After closing of prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C. No witness was examined on the defence side. 4. The learned Additional Sessions Judge, on 2 Crl. Appeal No.1326 of 2008 considering the evidence on record, found that the accused committed murder of Chendu and he was convicted under Section 302 of the Indian Penal Code. The accused was sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for one year. Against the conviction and sentence, the accused filed this appeal. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that the court below ought to have found that PW4 and PW6, who are the alleged occurrence witnesses had given exaggerated and inconsistent version regarding the incident, which would make their presence doubtful during the time of the alleged incident. The learned counsel for the appellant submitted that the court below ought to have found that prosecution has suppressed the genesis of incident and has not come up with the true version of the case. The learned counsel for the appellant further submitted that the trial court erred in 3 Crl. Appeal No.1326 of 2008 not considering that the contradictions marked in Exts.D1 to D11 are on material aspects affecting the prosecution version of the case. The learned counsel for the appellant submitted that the prosecution has not succeeded in proving its case beyond reasonable doubt. The learned Public Prosecutor supported the conviction and sentence. 7. PW1 Rajendran, who gave Ext.P1 F.I. statement before the Police is the younger brother of deceased Chendu. PW1 was not an eye witness to the occurrence. Ext.P1, the F.I. statement was lodged by him before the Kumily Police Station on 19.2.2004 stating that his brother Chendu died due to the stab injuries inflicted on him by one Manikandan. PW1 deposed that he received information regarding the occurrence at his work place and immediately he rushed to the hospital at about 12.15 p.m. and Chendu was declared as dead by the doctor. PW1 deposed that his sister Pappa was married to one Murukesh who had deserted her after some time. Thereafter, Pappa was residing in the house along with them. On the fateful day, Pappa was beaten by Manikandan and she came to 4 Crl. Appeal No.1326 of 2008 the house to inform her mother. PW1 overheard the matter and conveyed it to Chendu. Chendu went to the taxi stand in his Jeep. According to PW1, since Chendu questioned the accused why he had assaulted his sister Pappa and due to the previous enmity, the accused committed murder of Chendu. PW2 Kuttappan, who was an eye witness to the occurrence turned hostile. PW3 Anthony deposed that immediately after the incident, he saw the accused with a knife and the accused told him that he had already stabbed one and would go to the police station after finishing others. PW4 Chellathai is the mother of deceased Chendu. PW4 deposed that on the day of occurrence, she had gone near companykada for arranging money for the marriage of her daughter Bhagyalekshmi. She found Chendu there at Chenkara city. He talked to her and directed her to return immediately. She met PW6, her daughter Selvi on the way. After talking for a while, they departed. Then she heard someone calling 'Amma'. She looked to the place from where the sound was originated and found Chendu there. Chendu told her that he was stabbed by Manikandan. Then Manikandan Crl. Appeal No.1326 of 2008 5 repeated stabbing him. She rushed towards him and cried aloud. On hearing the cry, people gathered and Manikandan left the place. Chendu was taken to the hospital and was declared dead at 12.30 p.m. 8. It is true that in the 161 statement before the Police, PW4 had no case that she saw the accused stabbing Chendu with a knife. But, her version that she heard Chendu calling her as 'Amma' and found him rushing to the layam nearby, pressing his abdomen with hands and also telling that he was stabbed by the accused, is in consonance with her statement before the Police and therefore, that portion of the evidence of PW4 appears to the true. PW5 Palpandi is the father of Chendu. He is not an eye witness to the occurrence. PW6 Selvi (Pappa) is the sister of Chendu. PW6 is an eye witness to the occurrence. PW6 deposed that on 19.2.2004, while she was coming down from her house, she saw PW4, her mother coming upwards. While talking with her, she heard someone calling 'Amma' from a place in between the Mavelistore and the Companykada. When looked at the place 6 Crl. Appeal No.1326 of 2008 of origin of sound, she saw Manikandan pushing down Chendu and stabbing him on his left abdomen. When Chendu rose from the place, Manikandan again stabbed him twice. Thereafter, he pulled the knife out from the wound and went towards the temple. Herself and her mother cried aloud. The people gathered and took Chendu to the hospital. PW6 fell unconscious. After some time, they went to the hospital and found Chendu dead. According to her, an incident had taken place previously, in which Manikandan had broken the TV and also assaulted her father and brothers. A complaint was lodged against Manikandan in the said incident and he was charge sheeted. According to PW6, after the said incident, Manikandan was not in good terms with Chendu. `15,000/- was also given by her to Manikandan for doing the business in Arishtam. She denied the alleged affair with Manikandan and their living together under one roof as husband and wife. 9. Exts.D4 to D11 are the statements given by PW6 to the Police regarding her alleged affair with the accused. PW7 Ganesan deposed that immediately after the occurrence, he Crl. Appeal No.1326 of 2008 7 saw the accused holding MO1 knife in his hands and the accused told PW3 that he had killed one and would go to the police station only after killing three more persons. PW12, Dr.K.M.Thomas was the Medical Director of Periyar Hospital, Kumily. Chendu was brought before him on 19.2.2004 at about 11.15 a.m. in a very critical condition. Even though resuscitatory measures were provided, Chendu died at 11.55 a.m. on the day itself. 10. PW14, Dr.Tomy Mappilakayil, the Deputy Police Surgeon of Medical College Hospital, Kottayam had conducted the post mortem examination on the body of Chendu on 20.2.2004 and issued Ext.P10, the post mortem certificate noting down the following ante-mortem injuries. - “(1) Incised stab wound on left side of back of chest 1.9 x 1.2 cm., transverse, 23 cm. below top of shoulder, 10 cm. outer to back midline the outer end blunt and inner end sharply cut the wound entered the left chest cavity through the seventh inter costal space (2.3 x 0.7 cm) and pierced the lower lobe of left and towards right for a depth of 7 cm. The chest cavity contained no fluid including blood (open wound). 8 Crl. Appeal No.1326 of 2008 - (2) Abraded contusion on left frontal region 5 x 0.7 cm. transverse 1 cm. above eye brow, 3.5 cm. outer to midline. - (3) Abraded contusion on back of right elbow 1 x 1 cm. - (4) Abraded contusion right side of chest 2.5 x 0.5 cm. vertical, 11 cm. below armpit. - (5) Incised wound on inner aspect of right index finger 1.6 x 0.2 cm. transverse, 3.5 cm. above tip of the finger, bone deep. - (6) Incised wound on back of left middle finger 1.5 x 0.2 cm. vertical, 3.7 cm above tip of the finger, muscle deep. - (7) Incised wound on back of left middle finger 1.5 x 0.5 cm. at the nail bed region, muscle deep. - (8) Linear abrasion 4.5 x 0.1 cm. transverse, 5 cm. below elbow on its front aspect. - (9) Abrasion on front of left elbow 2 x 2 cm. - (10) Abraded contusion on left side of chest 2 x 2 cm., 12 cm. below arm pit. - (11) Incised wound on tip of left shoulder region 5.5x 2.5 cm. transverse, bone deep. - (12) Linear abrasion on left side of front of neck 6 x 0.2 cm., transverse, 3 cm. outer to front midline 3.5 cm. above collar bone. - (13) Incised wound on under surface of left side of chin 2 x 0.5 cm., transverse, 1.5 cm. outer to midline 3 cm. below jaw bone. - (14) Incised stab wound on left side of abdomen 3.2 x 1.2 cm. vertical with lower end blunt and the upper end pointed with bulling upwards and towards right for a length of 5.5 cm. superficially. The wound entered the abdominal cavity pierced the greater omentum (2.6 x 0.6cm) made a nick on the transverse colon, penetrated 2 x 0.4 cm., and made a nick 9 Crl. Appeal No.1326 of 2008 on the superficial lungers of ileum 2 x 0.2 cm. not entered the lumen. The wound have a minimum total depth of 6 cm.” 11. According to PW14, Chendu died due to the stab injuries sustained by him on his chest and abdomen. In his opinion, the stab injuries and incised wounds noted in Ext.P10 could be caused with MO1 knife and injuries 1 to 4 are no longer possible in a scuffle. According to him injury Nos.1 to 14 could only be caused in a scuffle in which a sharp edged weapon was also in use by the assailant for the infliction of the injuries. 12. PW16 was the Circle Inspector of Police, Kumily. PW16 deposed that the accused surrendered before the court and while the deceased was in police custody, PW16 recorded the confession statement of the accused and on the basis of the confession statement given by the accused, MO1 knife was recovered as per Ext.A8 mahazar. The relevant portion of the confession statement leading to the recovery of MO1 was marked as Ext.P8(a). 13. When the accused was questioned under 10 Crl. Appeal No.1326 of 2008 Section 313 Cr.P.C., he denied all the incriminating circumstances and added that PW6(Selvi) and himself were living as husband and wife for some time. Following a quarrel ensued among them, Selvi made a complaint before the Police. In pursuance thereof, the Police had directed him to arrange a house for her to reside and also to give `1,500/- per month towards her expenditure. Accordingly, a house was arranged for her and had started payment of money. After some time, due to financial difficulties, he defaulted monthly payment agreed by him and therefore, Selvi came to his shop. Consequently, a wordy altercation ensued among them and she was ousted from the shop. She went to her house and told her brother, Chendu (deceased) and her mother that she was assaulted by him. After about an hour, Chendu came to his shop accompanied by his mother and some drivers with knives and steel plate of the vehicle and pulled him out. In the scuffle ensued, Chendu received injuries. His plea was of total innocence. According to him, in fact, he was assaulted brutally by Chendu and the men accompanying him. 11 Crl. Appeal No.1326 of 2008 14. The case of the accused that he was brutally attacked by the deceased and associates cannot be accepted as true, as there is no evidence to show that the accused sustained serious injuries in the incident. 15. The learned counsel for the appellant invited our attention to paragraph 6 of the decision reported in Jagdish Prasad v. State of M.P. (AIR 1994 Supreme Court 1251), wherein, it was held : “6. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated provided the testimony, of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the court will require sufficient corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 wherein this court has classified the testimony of a witness into three categories viz. (1) wholly reliable (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable and observed that though in the first two categories of classification, there may not be any difficulty in coming to a conclusion either accepting or rejecting the testimony but it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or 12 Crl. Appeal No.1326 of 2008 ## circumstantial.” 16. The learned counsel for the appellant submitted that PW6 will come under category No.2. It is true that PW4 and PW6 are close relatives of the deceased. Relationship is no ground to discard their evidence. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. There is also no impediment in law in basing the conviction on the solitary testimony of a single witness if the court comes to the conclusion that his evidence is honest and trustworthy. According to the testimony of PW4, her daughter PW6 was there near the scene of occurrence. PW6 also deposed that her mother PW4 was present near the place of occurrence. Therefore, the presence of PW6 near the scene of occurrence cannot be doubted. 17. It is true that there are some discrepancies in the evidence of PW6. But, those discrepancies do not shake the basis version of the prosecution case. The court must evaluate the entire materials on record by excluding the exaggerated version given by the witness. Since the testimony of PW6 that 13 Crl. Appeal No.1326 of 2008 she saw the accused stabbing Chendu with a knife is corroborated by medical evidence and as the testimony of PW6 is creditworthy and inspires confidence, we are of the view that the prosecution has succeeded in proving that Chendu died due to the stab injuries inflicted by the accused by using a knife. 18. The next question to be considered is as to what is the offence committed by the accused. Exception 1 of Section 300 of the Indian Penal Code reads as follows : _“Exception 1._ - When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: _First_ .-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. _Secondly._ -That the provocation is not given by 14 Crl. Appeal No.1326 of 2008 anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. _Thirdly._ -That the provocation is not given by anything done in the lawful exercise of the right of private defence. _Explanation._ -Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact:” ## 19. In the decision reported in Mathachan v. State of Kerala (1995(2) KLT 903), it was held : “What will be grave and sudden provocation will depend upon the facts and circumstances and also the temperament of the person concerned. There is no hard and fast rule and each case must be decided upon its facts. From what had been proved, the deceased just did not rest contend to play the role of a pacifist, but sought to do something more. When the accused made it clear to him that he was not willing to abide by his advice, he should have left him alone and not precipitated a situation what led to a scuffle between them in which the accused who had been pushed fell down. By his conduct he had shown where his sympathies lay and whose cause he was interested to espouse, that naturally must have upset and provoked the accused to attack him, that he did with the dagger he carried. In our view, momentarily the accused would have lost self control by the sudden provocation that he had from the deceased, which certainly could not be dismissed as not grave by his standard. From the circumstances we 15 Crl. Appeal No.1326 of 2008 should discount that he had the intention to kill or inflict such injury as was most likely to cause death. He has committed only culpable homicide not amounting to murder coming under the first part of Section 304 I.P.C.” 20. In the present case, there is no evidence to show as to how the scuffle between the accused and deceased had started. The accused had not gone to the house of the deceased in order to attack him with the knife. It was when the deceased came to the place of the accused to ask him about the assault on PW6, the scuffle took place and during the course of the scuffle, the accused inflicted stab injuries on the body of the deceased by using a knife. Words and gestures can also under certain circumstances suffice to cause grave and sudden provocation. The mental background created by previous act of victim can be taken into account while determining whether subsequent act could cause grave and sudden provocation to the accused. In the present case, as per the prosecution case itself, it is clear that the accused and the deceased were in inimical terms even before the occurrence. When the deceased questioned the accused about the assault 16 Crl. Appeal No.1326 of 2008 on PW6 by the accused, the accused might have lost his self control momentarily and he would have inflicted injuries on the deceased. Therefore, we are of the view that the offence committed by the accused is culpable homicide, not amounting to murder, punishable under Section 304(1) of the Indian Penal Code and not murder under Section 302 of the Indian Penal Code. Considering the nature of offence and the circumstances in which it was committed, we are of the view that sentencing the accused to undergo rigorous imprisonment for 8 years under Section 304(1) of the Indian Penal Code would meet the ends of justice. Accordingly, this appeal is allowed in part. The conviction and sentence of the appellant/accused under Section 302 of the Indian Penal Code is set aside and the appellant/accused is found guilty and is convicted under Section 304(1) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for 8 years. The period of detention already undergone by the appellant/accused will be set off against the sentence of imprisonment under Section 428 17 Crl. Appeal No.1326 of 2008 of the Criminal Procedure Code. The court below is directed to issue revised warrant of committal. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)