NELLIYOTTU VALAPPIL MANI v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935 CRL.A.No. 98 of 2013 (B) -----------------------AGAINST THE JUDGMENT DTD.12.9.2012 IN SC 544/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY. APPELLANT/ACCUSED: ------------------------ NELLIYOTTU VALAPPIL MANI, CONVICT NO.941, CENTRAL PRISON, KANNUR. S/O.KELU, PATTUVAM AMSOM, ARIYIL DESOM, KAYYAM. BY ADV.SMT.JYOTHILAKSHMI K.K RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. -----------------------Crl.Appeal No.98 Of 2013 ---------------------Dated this the 10[th] day of June, 2013.** ## **J U D G M E N T** The accused in S.C.No.544/2005 on the file of the Additional Sessions Court (Ad-Hoc-II), Thalassery, is the appellant. The appeal is directed against the judgment dated 12.9.2012 in the above said case. The accused is charged for the offence punishable under Section 302 IPC. The Sessions Court found that the prosecution has succeeded in proving that the accused had committed the offence punishable under Section 304 Part 2 IPC and hence found the accused guilty and convicted under Section 304 Part 2 IPC. The accused is sentenced to undergo rigorous imprisonment for five years. Parties hereinafter are referred to as arrayed in the sessions case. 2. The incident happened on 9.2.2003 at 9:00 pm at the courtyard of the house of PW1. The prosecution case is that the accused with MO1 bamboo piece gave a blow on the head of Sreejith with the intention to do away with his life. Sreejith instantly became unconscious and remained unconscious for four days. He died on 13.2.2003 at 10:30 pm while undergoing ## **::2::** ## **Crl.Appeal No.98 Of 2013** treatment at Koyili Hospital, Kannur. Case was registered by PW12, Additional Sub Inspector of Police, Taliparamba, upon receipt of First Information from PW1. PW15, Circle Inspector of Police, Taliparamba, laid the charge against the accused before the Judicial First Class Magistrate Court, Taliparamba. The learned Magistrate committed the case to the Court of Sessions, Thalassery. Charge was framed under Section 302 IPC. 3. The evidence in this case consists of testimonies of PWs 1 to 15, Exts.P1 to P19 and MOs 1 to 5 on behalf of the prosecution. While questioned under section 313 Cr.P.C, the accused denied all the incriminating circumstances brought out in evidence against him. The defence case is that when he came back at 8:15 pm after work on 9.2.2003 he heard noise at the house of PW1 and that he saw a scuffle there. 4. The Sessions Court examined the question as to whether the accused with the intention to cause death of Sreejith gave a blow on his head with a bamboo piece on 9.2.2003 at 9:00 pm at the courtyard of house bearing door No.6/445 of Pattuvam Panchayath, as to whether Sreejith died due to the **::3::** ## **Crl.Appeal No.98 Of 2013** injury sustained due to the blow on his head while undergoing treatment at Koyili Hospital, Kannur and as to whether the accused is guilty of the offence punishable under Section 302 of IPC. 5. The evidence and materials on record would show that PW1 is residing along with his father, mother and two sisters at Kayyam. Deceased Sreejith is his uncle's son. PW1 is the son of PW2 Deceased Sreejith is the son of the younger brother of PW2. 6. The incident in this case is alleged to be taken place in the courtyard of the house of PWs 1 & 2. Prosecution examined PWs 1 to 3 to prove the occurrence. PW1 testified before the court that he is residing along with his father, mother and two sisters, that Sreejith is his uncle's son, that the accused is residing two houses away and that he is a close neighbour. He also narrated the incident. He testified before the court that deceased Sreejith came to his house with ` 10,000/- between 8:30 pm and 9:00 pm. The amount was brought at the request of PWs 1 & 2. They have requested the deceased Sreejith to pay them ` 10,000/- as loan for repair of their house. From the **::4::** ## **Crl.Appeal No.98 Of 2013** materials on record it is seen that the house of PWs 1 & 2 is under construction and at the time of the incident they were residing in a temporary shed in the same compound. According to PW1, deceased Sreejith came with his friend Sumesh, who was examined as PW3 and that while they were talking inside the house, the accused came there. PW1 used to go along with the accused for their work. Accused asked PW1 to go for work along with him on the next day. The deceased told PW1 that if he goes for work along with the accused, he will not be able to repay ` 10,000/-. The accused retorted that if he is not coming for work on the next day, he need not come again with him. The accused was made to go from the house of PW1. Afterwards, while PW1 was talking with deceased Sreejith, the accused came again with Damu, who was examined as CW6. Both of them were drunk. Sreejith asked the accused as to why he came back as he was already told to go away. Then the accused retorted and said that who are you to say this. When Sreejith came to the courtyard, the accused took a bamboo piece and gave a blow on the head of Sreejith. Immediately, Sreejith fell down and whole members of ## **::5::** ## **Crl.Appeal No.98 Of 2013** the house cried aloud. Sreejith was unconscious and he was taken to Taliparamba A.M.Hospital in an autorickshaw. From there he was taken to Koyili Hospital, Kannur. There he was admitted in ICU. On the next day at 9:00 pm PW1 went to Taliparamba Police station and gave Ext.P1 FI statement. PW1 was in the hospital along with the injured and that is the reason why the complaint was lodged on the next day. On the 5[th] day, Sreejith died. 7. According to PW1, there was electric light in the verandah and in that light he had seen the occurrence. Thus, PW1 narrated the incident that happened during the night hours on 9.2.2003. PW1 identified MO1 as the bamboo piece used by the accused. MO2 shirt and MO3 dhoti worn by the accused at the time of occurrence were also identified by him. 8. PW2 is the father of PW1 and uncle of deceased Sreejith. He was present along with PW1 at the time of the accident. PW2 support the version of PW1 regarding the occurrence. He testified before the court the incident that happened on 9.2.2003. He also stated that there was a verbal **::6::** ## **Crl.Appeal No.98 Of 2013** quarrel between the deceased Sreejith and accused and the accused was forcefully made to go from the house. He also testified that the accused again returned and he gave a blow on the head of Sreejith and Sreejith fell down unconscious. He also deposed that on hearing the cry, neighbours came there and Sreejith was taken to the hospital. PW2 also identified MO1. In the cross-examination he stated that he has not seen the actual infliction of blow by the accused on the head of Sreejith. He has only seen Sreejith lying down after receiving the blow. In reexamination at the instance of the Public Prosecutor he was declared hostile. 9. PW3 is a friend of Sreejith, who accompanied Sreejith on the fateful day. He testified before the court that they reached the house of PW1 at about 8:30 pm and that they have gone there to give ` 10,000/- to PW2, the uncle of Sreejith. He also narrated the incident. He said that the accused was asked to go out by Sreejith and PW2, that the accused went away and came back again and that the accused took a bamboo piece and gave a blow on the head of Sreejith, who was standing in the ## **::7::** ## **Crl.Appeal No.98 Of 2013** courtyard. The narration of the incident by PW1 was not discredited when he was cross-examined. His evidence was corroborated by the PWs 2 & 3. All of them have seen that Sreejith fell at the courtyard. PWs 1 & 3 testified before the court that they saw the accused giving a blow on the head of Sreejith with a bamboo piece. PW2, who is the father of PW1 also testified before the court that he had seen Sreejith lying down after receiving the blow. The place of occurrence is between the house where the construction is going on and the temporary shed wherein PWs 1 & 2 and their family members are residing. Evidence on record would also show that there was a scuffle between Sreejith and the accused. 10. PW4 is an attestor to Ext.P2 inquest report and PW5 is the attestor to Ext.P3 mahazar. The mahazar was prepared at the time of seizure of the shirt and pants worn by Sreejith which was brought from hospital. PW5 identified the shirt of Sreejith as MO4 and pants as MO5. PW6 is an attestor to Ext.P4 scene mahazar and PW8 is an attestor to Ext.P7 additional scene mahazar. **::8::** ## **Crl.Appeal No.98 Of 2013** 11. The Manager of Kuttiyeri Serice Co-operative Bank as PW9 testified that on 4.2.2003 Sreejith availed a loan of `10,000/- from the bank for repair of house. Ext.P8 is the extract of loan ledger. PW10 is the Village Officer, who prepared Ext.P10 site plan. PW11 is the Secretary of Pattuam Panchayath who proved Ext.P11 ownership certificate which is in the name of PW2. The Doctor who issued Ext.P5 wound certificate was examined as PW7. Ext.P9 case sheet with respect to the treatment of Sreejith was also marked through him. PW7 deposed that he examined Sreejith who was brought unconscious and deeply comatosed at 9:00 pm on 9.2.2003. The C.T.Scan showed right fronte paratal subdural haemorrhage with midline shift. The C.T.Scan report on 13.2.2003 showed acute infart involving right cerebral hemisphere with brain swelling and elevation of croniotomy flap. The alleged cause was assault. The Doctor testified that right fronte paratal subdural haemorrhage with midline shift can be caused by beating with MO1 on head. The Doctor also opined that it is not necessary that there will be external injury if a person is beaten with a blunted object **::9::** ## **Crl.Appeal No.98 Of 2013** forcefully on his head. PW13, who is the Professor of Forensic Medicine and Police Surgeon, testified that the deceased died due to blunt violence sustained to the head. According to him the antemortem injury can be inflicted by MO1. Postmortem certificate is marked as Ext.P12. He has opined that fracture in this case is not due to a fall and that the external injury is not a must because hair will be having a cushioning effect, preventing the external injury and if the surface of the weapon is smooth as in the present case, no abrasions will be produced on the skin. The Additional Sub Inspector of Police, Taliparamba, who was examined as PW12, testified that on 10.2.2003 at 9:00 pm, PW1 came to police station and gave Ext.P1 FI statement. The crime was registered under Section 324 IPC and he prepared Ext.P1(a) FIR. PW15 is the Circle Inspector of police, who took over charge from PW12. PW15 prepared Ext.P2 inquest report at Koyili Hospital, Kannur. He had seized Ext.P13 house tax receipt under Ext.P7, arrested the accused, prepared Ext.P14 arrest memo and Ext.P15 inspection memo. He identified MO2 as the shirt and MO3 as the dothi seized by him under Ext.P16. He also seized ## **::10::** ## **Crl.Appeal No.98 Of 2013** the shirt and pants which are marked as MOs 4 & 5 worn by Sreejith at the time of occurrence under Ext.P5 mahazar. He also identified MO1 bamboo piece seized by CW 27 under Ext.P4 scene mahazar. He questioned the witnesses and took notes and sent Ext.P18 report to court including Section 326 IPC. He also sent Ext.P19 report to court including Section 326 IPC and 302 IPC. PW14 laid the charge against the accused before the court. 12. The evidence adduced by PWs 1 to 3 would point to the guilt of the accused alone. On going through the materials on record the prosecution has succeeded in establishing its case against the accused beyond doubt. According to the accused PW2 turned hostile in prosecution case and tendered evidence as he has not seen the accused beating the deceased. According to defence, PW3 also did not witnessed the occurrence and his evidence cannot be relied upon. Based on the discrepancies in the evidence of PW3 the defence counsel contended that he was not present at the time of house of PW1 and that shows there is only one witness in support of the prosecution case regarding the **::11::** ## **Crl.Appeal No.98 Of 2013** occurrence and that is PW1. The counsel submits that when there is only solitary witness for the occurrence, the court has to be very careful in accepting the evidence. It is pointed out that PW1 is a relative of the deceased and as such he is an interested witness and he is not reliable. The absence of PW3 in the FI statement is relied upon by the learned defence counsel to contend that PW3 was not present along with deceased Sreejith in the house of PW1. The said contention was also considered by the learned Sessions Judge. In the facts and circumstances of the case, the learned judge observed that the non-mentioning of PW3's name in the FI statement is not a serious circumstance which enable the contention that PW3 was not present at the time of occurrence. The court below analysed the state of mind of PW1 while he gave statement to the police. It is noticed that PW1 has himself testified before the court that all along he was attending the injured at the hospital who was in the ICU and he did not get time to come to police station and lodge the complaint. It cannot be disputed that Sreejith has come to the house of PW1 with money to help him to do the construction ## **::12::** ## **Crl.Appeal No.98 Of 2013** work of the house. It is at the house of PW1 that Sreejith has sustained the fatal blow. Sreejith was taken to a hospital at Taliparamba and from there he was taken to Koyili Hospital, Kannur. The court below observed that it cannot be expected from PW1 to give a meticulous account of what transpired in his house. PW1 stated broadly what had happened at his house and the fact that Sreejith is undergoing treatment in Koyili Hospital. PWs 1, 2 & 3 testified before the court without any pinch of doubt that PW3 accompanied deceased Sreejith to the house of PW1. The court below also discussed the discrepancies pointed out by the counsel for the accused. The court below noticed the testimony of PW3 that he saw the accused giving a blow on the head of Sreejith. The court below read the evidence of PW3 as a whole and after analysing his evidence in totality, the learned judge found no reason to suspect the presence of PW3 at the place of occurrence. The court below also noticed the fact that the incident occurred in the year 2003 and the witness gave evidence in the year 2012. There is 9 years gap between the date of occurrence and giving evidence. The court below believed ## **::13::** ## **Crl.Appeal No.98 Of 2013** the evidence tendered by PW1 and PW3. The contention of the defence counsel is that there is a genuine doubt arising on the basis of this version of PW1 as to whether Sreejith sustained injury on his head by the fall or blow and that the benefit of doubt is to be given to the accused. Though PWs 1 & 2 eye witnesses are relatives of deceased Sreejith, their evidence cannot be discarded simply for the reason that they are the relatives of the deceased. PWs 1 to 3 are persons who witnessed the incident and therefore their evidence carry due weight. Relationship is not a factor to affect credibility of a witness. Going by the testimonies of PWs 1, 2 & 3 there is no reason to disbelieve their versions implicating the accused. PW1 categorically clarified in re-examination that Sreejith fell at the courtyard on receiving the blow and there are no rocks at the courtyard. Exts.P4 & P7 scene mahazars also show that there are no rocks at the courtyard. There is no question of any doubt as to how PW1 sustained head injury. Medical report also support the versions of PWs 1 to 3, who are the eye witnesses. The court below rightly did not accept the contention that the ## **::14::** ## **Crl.Appeal No.98 Of 2013** accused has to be given the benefit of doubt on the version of PW2 that Sreejith fell down over a rock at the time of crossexamination. 13. In the decision reported in _**Muhammed v. State of Kerala**_ (1999(3) KLT 948) a Division Bench of this Court held that relationship is not a factor to affect credibility of a witness. It is more often than note that a relation would not conceal actual culprit and make allegation against an innocent person. In _**Dileep Singh v. State of Punjab**_ (AIR 1953 SC 364) it was held that a witness is normally to be considered independent unless he or she springs from courses which are likely to be tained and that usually means unless the witness has caused such an enmity against the accused to wish to implicate him falsely. In the decision reported in _**Antony v. State of Kerala**_ (1993(2) KLT SN 30) it was held that even if there is any minor discrepancy or omission in the narration of incident by the witnesses, it cannot be said to be fatal to the prosecution case. ## **::15::** ## **Crl.Appeal No.98 Of 2013** 14. The evidence on record would conclusively prove that Sreejith sustained head injury on receipt of a blow by the accused. The place between the house and the shed spoken to by PW3 is nothing but the courtyard of the house. PWs 1 & 2 specifically stated the incident happened at the courtyard of the house. The house under construction and the temporary shed of PWs 1 & 2 where they are residing situate in one compound. So the courtyard is common for the the newly constructed house as well as the shed. The consistent version emerging from the evidence of PWs 1 to 3 is that the occurrence took place at the courtyard of the house of PW1. The delay in lodging the FI statement is explained by PW1 himself. The explanation is accepted. The court below observed that considering the serious injury and follow up done, it is quite natural for the doctors and relatives failed to report the police immediately. 15. The learned counsel for the defence relying on Ext.P5 wound certificate, Ext.P6 death intimation and Ext.P9 case sheet contended that the name of the deceased is not shown in any of the documents. The documents only show that injury was ## **::16::** ## **Crl.Appeal No.98 Of 2013** caused by blow by a known person. The said contention was also examined by the court below at length placing reliance on the decision reported in _**State of Kerala v. Sasi**_ [2005(1) KLT (SN) 27]. The court below held that there is no duty cast on the doctor to record the name of the assailant, that the doctor is not bound to record the names of the accused in the wound certificate and that there can be no doubt on this account. 16. After an elaborate evaluation of the evidence on record and after hearing both sides, I agree with the findings recorded by the court below that the prosecution has succeeded in proving the case beyond doubt that the accused using MO1 bamboo piece gave a blow on the head of the deceased at the courtyard of PW1 on 9.2.2003 at 9:00 pm and on account of the head injury sustained, Sreejith died on 13.2.2003. The court below considered the contention of the learned counsel that the accused is having any intention to cause death of Sreejith and the incident happened due to skirmish. The evidence on record would show that there was altercation between PW1 and Sreejith and that after the scuffle, accused had inflicted a blow with MO1 ## **::17::** ## **Crl.Appeal No.98 Of 2013** on the head of the deceased. Following various decisions of the Apex Court in paragraph 36, the court below concluded that the offence will come only under Section 304 and not under Section 302 IPC. After analysing the evidence on record in the light of the principles laid down by the Apex Court stated in paragraphs 36 & 37, the court below concluded that it cannot be evidently found that the accused intended to cause death by inflicting the blow. The learned judge observed that there was no premeditation and there was no malice. The accused and Sreejith met at the house of PW1 by chance. The cause of the quarrel was trivial and sudden. The accused, as a result of the quarrel, gave a blow on the head of Sreejith. In the circumstance, the court below rightly observed that the accused cannot be imputed with the intention to cause death or intention to cause a severe head injury which became fatal. Therefore, Section 302 is not attracted and the act of the accused comes within the offence under Section 304 Part 2 IPC. The entire evidence of record was evaluated and analysed in the right perspective. For the reasons stated in the preceding paragraphs, ## **::18::** ## **Crl.Appeal No.98 Of 2013** I agree with the reasonings and findings recorded by the court below. The prosecution has succeeded in proving that the accused has committed the offence punishable under Section 304 Part 2 IPC. In the result, the appeal fails and accordingly dismissed. **HARUN-UL-RASHID, Judge.** bkn/-