Muhammed Noushad Panginikkadan v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **CRL.A.No. 62 of 2014** **AGAINST THE JUDGMENT IN SC 209/2012 of SESSIONS COURT, KOZHIKODE DATED 22-10-2013** ## **APPELLANT/ACCUSED:** **MUHAMMED NOUSHAD PANGINIKKADAN HOUSE, VELLILA, MANKADA, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.C.THOMAS** ## **RESPONDENT/STATE:** **THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KODENCHERY POLICE STATION, KOZHIKODE- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY ADV.SR.PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4.12.2018, THE COURT ON 04.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.62/2014 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the 2[nd] Additional Sessions Judge, Kozhikode in S.C. No. 209 of 2012 by which he was found guilty under Section 302 and Section 307 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life for offence under Section 302 of I.P.C. and also to undergo rigorous imprisonment for five years for offence punishable under Section 307 of IPC. 2. The case of the prosecution is that Basheer (deceased herein) and PW2 Aboobacker were close friends. Basheer was an autorickshaw driver and PW2 was a cook by profession. On 12/09/2011, the deceased and PW2 were together in the autorickshaw of the deceased since 3.00 pm. PW2 joined Basheer at Thamarassery Chungam for giving him company. They together had lunch at Thamarassery and thereafter they spent about two hours there to prepare certain documents of the autorickshaw belonging to the deceased. Thereafter they went to the native place of PW2 which is named '26 miles'. By 06.45 p.m., Crl.Appeal No.62/2014 -:3:- they went to Chemparapatta river and had a bath. Thereafter, they proceeded towards Kaithapoyil in the autorickshaw. On the way, they stopped at the shop of PW1 at Kallappuram junction by 07.45 p.m., to buy cigarettes. The deceased got out of autorickshaw and bought a cigarette from the shop of PW1 and lit it. The accused/appellant was standing near the shop of PW1 from 4.00 p.m. onwards. After purchasing cigarette, the deceased turned back and proceeded towards the autorickshaw. At that time, accidentally he hit on the body of the accused/appellant. Deceased and accused/appellant had exchange of words and an altercation ensued there. While so, the accused/appellant stabbed on the chest and abdomen of the deceased with MO1 knife. Seeing this, PW2 rushed to them and tried to intervene. The accused/appellant with the very same knife stabbed on the right side of the neck of PW2 also. The deceased fell on the road. PW2 screamed. Hearing the screaming of PW2, some people from the locality rushed to the spot. The accused ran towards Kannoth road. Somebody telephoned for ambulance and one driven by PW3 came there and both victims were taken to hospital. 3. Prosecution examined PWs 1 to 30 as witnesses, Crl.Appeal No.62/2014 -:4:- marked documents Exts. P1 to P24 and identified MOs 1 to 14. During 313 questioning, the appellant/accused denied all the incriminating circumstances and pleaded innocence. He stated that there was altercation between him and the deceased as well as PW2 in front of the shop of PW1 at the relevant time and in the course of the said altercation, he fell down and when the deceased and PW2 made an attempt to attack him they sustained the injuries. According to him, PW2 and the deceased were well built and they were the aggressors. Alternatively, the appellant/accused pleaded right of private defence as well. No defence evidence was adduced. 4. Learned counsel appearing for and on behalf of the appellant Sri.P.C.Thomas argued that the appellant, a poor man is falsely charged with this serious crime by the police. He was attacked by the deceased and PW2 and the appellant was acting upon to save his life. Even according to the prosecution, there is no motive for the crime. There is absolutely no pre-meditation or intention on the part of the appellant to commit the crime. The deceased was having the knife with him. The appellant is a weak person compared to the deceased and PW2. He was attacked by Crl.Appeal No.62/2014 -:5:- them without any provocation. The injuries inflicted were not serious wounds. There is evidence to show occurrence of a scuffle. PW2, though injured, is a highly interested witness and his evidence should not be believed. Prosecution is suppressing the genesis of the incident and presenting a false case before Court. Evidence would clearly show that the appellant is innocent and if at all any injury is inflicted, it is only for defending himself. The Court below erred in convicting the appellant and hence it need to be reversed. He relied on _**State of Rajasthan v. Manoj Kumar**_ [(2014) 5 SCC 744] and _**Suresh Singhal v. State (Delhi Administration)**_ [(2017) 2 SCC 737] to emphasize the settled position in relation to the right of private defence. 5. Learned Public Prosecutor Shri Nicolas Joseph contended that there is enough evidence to prove the case against the appellant. The deceased was unarmed and the appellant inflicted multiple injuries on the vital parts of the body of the deceased. Evidence of PW1 and PW2 are believable. He is an injured eyewitness. The unchallenged version of PW2 clearly evidences that the fatal blow was inflicted by the appellant while the deceased was retracting. This evidence improbabilize the Crl.Appeal No.62/2014 -:6:- version of the appellant that he was acting while exercising his right of private defence. Weapon of offence and the dress of the appellant were recovered. Medical evidence and forensic evidence corroborates the oral evidence and the trial Court is justified in convicting the appellant and hence this Court need not interfere. 6. Prosecution relied upon the following evidence to prove the guilt of the appellant: (i) Testimonies of PW1 and PW2 out of which PW2 is an injured eye-witness. (ii) Evidence of PW4 to PW6 and PW14 to corroborate the evidence of PW1 and PW2. (iii) Recovery of MO1, MO6 and MO9 based on the information given by the appellant/accused herein. (iv) Medical evidence. Oral evidence of PW17 and PW25. Documentary evidence Exts.P9 and P13. 7. Evidence adduced by the prosecution, in brief, are as under: PW1 is an eye-witness and he gave Ext.P1 FIS to PW28 and based on the same PW28 registered Ext.P1(a) FIR. 8. Ext.P6 is the inquest report to which PW13 is a Crl.Appeal No.62/2014 -:7:- witness. Ext.P7 is the scene mahazar. PW15 is an attestor to it. MO14 series hawai chappals were seized from the place of occurrence. PW30 arrested the accused/appellant on 13/09/2011. Ext.P17 is the arrest memo and Ext.P18 is the inspection memo. Based on the confession statements Exts.P2(a), P3(a) and P10(a) given by the appellant, PW30 recovered MO1 knife, MO6 shirt worn by the appellant at the time of committing the crime and MO9 mobile phone respectively by preparing Exts.P2, P3 and P10 recovery mahazars respectively. PW7, PW8 and PW20 are respective witnesses for the said mahazars. 9. MO4 and MO5 are the dress worn by the deceased at the time of offence and they were seized as per Ext.P4 mahazar. PW13 is an attestor to it. MO2 and MO3 are the dresses worn by PW2 at the time of incident and PW12 is an attestor to Ext.P5 mahazar prepared for the same. Ext.P16 is a report prepared by and proved through PW29 the learned Magistrate who conducted test identification parade. PW25 is the Doctor who conducted autopsy on the deceased and Ext.P13 is the post-mortem certificate. PW17 is the Doctor who examined PW2 and Ext.P9 is the wound certificate. Ext.P21 is the forwarding note prepared by Crl.Appeal No.62/2014 -:8:- PW30 for sending samples of dried blood, nail clippings, chest hair around the injury, abdominal hair around the injury collected dring autopsy by PW17. Ext.P24 is the chemical analysis report. MO7 is the cotton gauze collected by PW18 from the place of occurrence which was seized by PW16 through Ext.P8 mahazar. PW26 is the village officer who prepared Ext.P14 site plan. 10. The questions to be considered are three-fold: (i) Whether the evidence adduced by the prosecution is sufficient to hold that appellant has inflicted fatal injuries on the deceased and PW2 as held by the trial Court? (ii) Whether the right of private defence is available to the appellant as alleged? (iii) Whether the offence would fall under any of the exceptions enumerated under Section 300 of IPC? ## Question no.1 11. Evidence adduced by PWs 1 and 2 throws light to the occurrence. PW1 deposed that on 12/09/2011 by 04.00 p.m., he saw the appellant standing in the way near to his shop while he was going to open his shop at Kallappuram. He knew the appellant for last six to seven years. According to PW1, the Crl.Appeal No.62/2014 -:9:- appellant was there in and around the shop till closing of the shop at 07.45 p.m. He deposed that by 07.45 p.m. as he was about to close down the shop, PW2 and the deceased came there in an autorickshaw from Kannoth side. One of them bought cigarette from the shop. While he was closing down the shutter, he heard some exchange of words between the appellant and those who came in autorickshaw. Within a while, he heard one among the persons who came in the autorickshaw shouting "അവൻ എന� കത�" (he stabbed me). He immediately looked towards the road and found the appellant running away. He also saw the deceased lying on the road. Both the injured were taken to the hospital. According to him, he saw the incident as there was light from his shop and from the nearby Church. 12. PW2 is the key witness of the prosecution. He is an injured eye-witness. He deposed that on the date of incident he along with the deceased while passing by the shop of PW1 in the deceased's autorickshaw on their way to Kaithapoyil, for buying cigarette, they stopped near the shop of PW1. Deceased went to the shop of PW1 and bought cigarette. The deceased after lighting the cigarette turned back and proceeded towards the Crl.Appeal No.62/2014 -:10:- autorickshaw. While coming so, he accidentally hit at the appellant's body who was standing there at that time. Thereafter, there was an exchange of words between the appellant and the deceased. According to PW2, immediately the appellant took MO1 knife and stabbed on the chest and abdomen of the deceased. Seeing this he rushed to them to save the injured and tried to prevent the appellant by holding him from the back. At that time the appellant stabbed PW2 also on the neck using the same weapon. The deceased sustained injuries and fell down on the road. PW2 screamed and the appellant ran away towards Kannoth road. Local people gathered at the spot and took the injured to hospital. PW2 identified the appellant as the aggressor, MO1 as the weapon used for the commission of the offence, MO2 and MO3 as the dresses worn by him and MO4 and MO5 as dresses worn by the deceased at the relevant time. The above evidence would show that the deceased sustained injuries at the hands of the appellant. 13. Learned counsel for the appellant has a contention that the prosecution had failed to prove the genesis of the incident. According to him, deceased and PW2 were well-built Crl.Appeal No.62/2014 -:11:- persons and it cannot be believed that the accused alone had attacked two such persons. That apart, evidence of PW4 and PW5 would prove the fact that the shirt worn by the accused was soiled which clearly means that there was a scuffle between the accused and the deceased. There is also no evidence to prove that the weapon belonged to the accused. Of course, the prosecution does not have a case that there was a scuffle between the accused and the deceased or with PW2. PW1 who is an independent witness has stated of having seen the accused in front of the shed of his shop leaning on the pillar. He was on his phone. He heard somebody saying “if you drink toddy, it should remain in your stomach”. He does not remember who said so. When he pulled down the shutter of his shop, one person who had come in the autorickshaw was screaming that “he stabbed me”. When he looked towards the road, he saw the accused running away and the person who came towards the autorickshaw lying down. He went and called an ambulance. Other people also came and he was taken to the hospital. He went to the police station on the same day and he had given Ext.P1 First Information Statement. According to him, the other Crl.Appeal No.62/2014 -:12:- person was Aboobacker (PW2). Neither PW1 or PW2 speaks about any scuffle as such. Everything happened immediately. According to these witnesses, there was some quarrel between the accused and deceased and thereafter what PW1 sees is that the deceased was lying down with the injury. It is true that PW4 and PW5 had indicated about the soiled shirt which the accused was wearing when he was travelling in their vehicle. It is not necessary that there was a scuffle before the actual stabbing. PW2 says that the accused and deceased were quarreling and within no time, the accused inflicted injuries on the deceased. In cross-examination he says that at the time when the accused was stabbing the deceased, they were face to face. Cross-examination of PW2 further indicates that the defence version was that MO1 knife was kept by the deceased in his autorickshaw for self protection. Further the suggestion made was that PW2 and the deceased were in a drunken stage and there was a scuffle between them and while the accused was being attacked, the deceased and PW2 suffered the injury. The aforesaid explanation is without any basis and from the factual circumstances, we do not think that there was a scuffle between the accused and Crl.Appeal No.62/2014 -:13:- deceased before the incident as in every possibility, the version of PW2 that there was a verbal quarrel between deceased and accused which resulted in the accused stabbing the deceased is proved. PW2 also suffers a very serious injury at the hands of the accused. The prosecution of course has no explanation as to how the shirt of the accused got soiled. But it is possible that it would have become soiled when the accused fell down while running away from the scene of occurrence. Therefore, the theory of the appellant that the deceased and PW2 suffered an accidental injury cannot be believed, whereas, according to us, prosecution had clearly proved the incident beyond reasonable doubt. 14. PW25 is the Doctor who issued Ext.P13 post-mortem certificate of Basheer. The following ante-mortem injuries were noted in Ext.P13: _“1. Incised penetrating wound 2.5 cm long, gaping (0.8 cm) obliquely placed on the front of chest with a left upper outer end and a right lower inner end. The injury was 15 cm below the suprasternal notch and 1 cm to the left of midline (10 cm inner to left nipple at 8'o clock position). The upper end was pointed and the lower end was blunt with marginal skin contusion (0.1 cm broad). The injury entered the chest cavity by cutting the left 6[th] and 7[th] costal cartilae obliquely along the external injury (2.5 cm long cut). There was dense infiltration of blood on_ Crl.Appeal No.62/2014 -:14:- _the inner aspect of chest cavity within the parietal pleura. Left chest cavity contained 750 ml of blood. Pericardium was cut (pericardial sac contained 250 ml of blood and one handful of blood clots). The right ventricle was pierced on the front underneath (2.5 cm long cut) and the injury entered the right ventricle chamber adjacent to the interventricular spetum. From the right ventricle chamber the injury extended by piercing the interventricular spetum (2.0 cm long cut) entering into the left ventricle chamber and terminated by transfixing the heart by piercing the left lateral margin of left ventricle wall obliquely (1.3 cm long cut) 2 cm above the apex of heart and then piercing the overlying pericardium. The left chest cavity contained 100 ml of blood. The wound was directed backwards, downwards and towards the left. The total minimum depth was 7 cm._ _2. Incised penetrating wound 2.5 cm long gaping (1.4 cm) obliquely placed on the right side of lower abdomen with an inner lower end and outer upper end exposing the subcutaneous fat. The upper end was blunt and lower end was pointed with a side cut 0.5 cm long extending from the lower end towards the umbilicus. The injury was 335 cm below right nipple and 8 cm outer to midline (13 cm away from umbilicus at 8' O clock position). The right margin of the wound showed faint dermal contusion along its entire length. The wound entered the abdominal cavity by cutting the muscles and peritoneum (cut measured 3.5 cm long) and injured the small intestine at two places 100 cm and 120 cm proximal to the ileoceceal junction (measuring 2x0.2 cm and 1.5x0.3 cm). The intestine contents found lying outside within the cavity. Adjacent mesentery of small intestine also found cut (defect_ Crl.Appeal No.62/2014 ## -:15:- _measured 6x2 cm). The right side of the abdominal cavity was smeared with blood and intestine contents. The injury was directed backwards, inwards and upwards. The total minimum depth of the injury was 9 cm._ _3. Abrasion 1.7x1cm on the right side of forehead 1.2 cm above the outer end of eyebrow._ _4. Abrasion 1.5x1cm on the right side of face 1 cm below the outer angle of right eye._ _5. Stretch laceration 3x0.5x0.3 cm with blood infiltration in situ, transversely placed on the left side of forehead along the outer end of eyebrow. There was an abrasion 2.3x0.7 cm extending upwards from the upper margin of the laceration._ _6. Vertical grazed abrasion 4.5x1.7 cm transversely placed on the left side of face extending outwards from the outer angle of left eye._ _7. Oblique grazed abrasion 9x3.5 cm on the left side of face extending downwards and towards the front from the front of left ear lobule. The back margin was 1 cm to the front of tragus of ear._ _8. Abrasion 3x1.5 cm on the back of upper part of left ear lobule the injuries 5, 6, 7 ,8 on the left side of head were over an area 14x8 cm._ _9. Abrasion 0.7x0.8 cm on the back of left little finger 2 cm distal to the root._ _10. Incised wound .7x0.2x0.3 cm transversely placed with marginal abrasion on the right side of chest 18 cm below the posterior fold of axillae. The underlying fact showed blood infiltration.”_ 15. The above evidence proves that Basheer died due to incised penetrating wound which is a stab injury sustained to the Crl.Appeal No.62/2014 -:16:- chest transfixing the heart of the deceased and the said injuries were inflicted by the appellant herein. Court below is justified in arriving at its conclusion in that respect. 16. PW2 further deposed that he sustained injuries at the hands of the appellant. He was examined by PW17 and Ext.P9 is the wound certificate issued. Ext.P9 shows that PW2 suffered lacerated wound of 3x3x2 c.m. right side of his neck exposing to muscles. PW1 also deposed that PW2 told him that “he stabbed me”. According to PW17, the injuries noted on PW2 are serious injuries. We find no error in the trial Court's conclusion that the appellant is the one who is responsible for the said injury to PW2. ## Question nos. 2 and 3. 17. Whether the act done by the appellant is in connection with his exercise of right of private defence is another crucial question. Evidence available improbabilize the said version. PW2 categorically deposed that they were unarmed and the appellant was attacking them with MO1 knife. He categorically deposed that the accused inflicted two stab injuries on the deceased and one on his neck. Nothing is brought out in evidence to shake his testimony. His version is corroborated by the evidence of PWs 1, Crl.Appeal No.62/2014 -:17:- 3, 4, 5 and 6. 18. As far as the recovery evidence is concerned, we don't find any material irregularity in the recoveries of MO1, MO6 and MO9. It corroborates the version of ocular witnesses and medical evidence. PW17 and PW25 opined that the injuries found on the deceased and PW2 could be caused by using MO1 as the weapon of offence. 19. It is settled position that unless evidence is adduced by the accused/appellant to probabilize the existence of circumstances justifying the exercise of right of private defence of body or property, no such presumption could be drawn. Of course, it is in evidence that there was wordy altercation and scuffle between the appellant and the deceased. But nothing is brought in evidence to show that the deceased and PW2 were the aggressors or that they were carrying any weapon. Also, nothing is on record which shows that there was a reasonable apprehension of death or grievous hurt to the appellant from the deceased or PW2. It is also seen that the appellant had not produced any material to show that he sustained some injury in the incident. PW2 deposed that MO1 was with the appellant. The Crl.Appeal No.62/2014 -:18:- weapon is recovered based on the information disclosed by the appellant. These circumstances improbabilize the case of the defence. It is to be noted that during cross-examination of PW2, a question was put to the said witness by the defence counsel and his reply to it assumes relevance here which is quoted hereunder: _"_ ന�ങന� പ��ല�സ� പ��ദ�� ന�യപ��ൾ _"_ ബഷ�റ� അയ�ള� തമ�ൽ വ�ക തർകമ�യ� _._ ഞ�ൻ ബഷ�റ�നന സമ�ധ�ന���ച� ഓപ-�റ�കയ�പലക� കയറ�ൻ പറ�ഡ�പലക� ഇറങ�പ��പ3ക� ബഷ�റ�നന അയ�ൾ കത�നക�ണ� നനഞ�ല� വയറ�ല� കത�ത� കണ _"_ എന നമ�3� നക�ടത�രപ�� _. (Q)_ നമ�3� നക�ടത�രന _._ അത ശര�യ�ണ _. (A)”_ This evidence improbabilize the plea of private defence of the appellant. Hence, in the light of overall evidence, we are inclined to hold that the appellant herein has not proved his case of private defence with preponderance of evidence and probabilities. 20. At the same time, on analysing the entire evidence, it can be seen that there is no pre-meditation for the crime. According to PW1, the appellant whom he knew for past seven years, was standing there from 4.00 p.m. onwards on the date of incident. Admittedly, there was an altercation between the deceased and the appellant and a scuffle followed. Prosecution Crl.Appeal No.62/2014 -:19:- witnesses PW4 and PW5 deposed that they found the appellant with mud on his shirt while he was going away from the scene of occurrence in autorickshaw. The whole incident started at the spur of a moment and there was neither pre-meditation nor motive. It would show that the offence at hand would fall only under Section 304 part I of the I.P.C., and not under Section 302 as held by the trial Court. Apparently, the aforesaid offence may come under Exception 1 to S.300 of I.P.C. as there was no premeditation. The accused and the deceased were total strangers. They started a quarrel for having touched the body of accused. Probably the attitude of the accused questioning the deceased might have created a verbal quarrel between them which resulted in the accused causing the injuries on the deceased and PW2. Therefore, it might come under Exception 1 to S.300. 21. In order to attract S.304 Part I of I.P.C., the act by which the death is caused should be done with the intention of causing death or such bodily injury as is likely to cause death. When the accused is stabbed on his chest and thereafter on his abdomen, it definitely indicates an intention to cause death. In the result, the appeal is partly allowed. The conviction Crl.Appeal No.62/2014 -:20:- and sentence passed by the trial Court under Section 302 of I.P.C. is hereby set aside. The appellant herein is found guilty under Section 304 Part I of I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `1,00,000/(Rupees One lakh only), on default of payment of which, to undergo rigorous imprisonment for a period of one year. On payment or realisation of the fine amount, `75,000/- (Rupees Seventy five thousand only) shall be paid as compensation to the legal heirs of the deceased. The finding of the trial Court regarding offence under Section 307 of I.P.C. stands confirmed. All sentences shall run concurrently. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge