O.P. Padmanabhan @ Pappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** ## **CRL.A.No. 1245 of 2011 (A)** **--------------------------(AGAINST JUDGMENT DATED 11-11-2010 IN SC 758/2008 OF SESSIONS COURT, THALASSERY)** ## **APPELLANT/ACCUSED:** **----------------------------------** **O.P .PADMANABHAN @ PAPPAN, S/O.VELUTHAMBU, AGED 58 YEARS, RESIDING AT OTTAPURAYIL, HOUSE, KUTTIYERI AMSOM, VELLAV DESOM, THATTUMMAL, KANNUR DISTRICT.** **BY ADV. SRI.P.M.PAREETH** ## **RESPONDENT/COMPLAINANT:** **-------------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **BY ADV. PUBLIC PROSECUTOR SRI. K.K. RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** ## **C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl. Appeal No. 1245 OF 2011** ------------------------------------------------DATED THIS THE 25[th] DAY OF JULY, 2016 ## **J U D G M E N T** ## Abdul Rehim, J: Accused in SC No.758 of 2008 on the files of the Additional Sessions Court, Thalassery in S.C.No.758 of 2008 is the appellant herein, challenging the convection and sentence imposed against him under Section 304 Part-I IPC. The appellant was charge sheeted for offence punishable under Section 302 IPC. The trial court found the appellant guilty of offence under Section 304 Part -I of IPC and sentenced him to undergo rigorous imprisonment for 8 years and to pay fine of Rs.5,000/- and in default of payment to undergo simple imprisonment for a period of one month. 2. Prosecution case in brief is that, the accused, due to his previous enmity with the deceased, Marangalath Balan, because of the dispute existing with respect to a pathway and also due to an incident in which a calf owned by the deceased had entered into the property owned by the **Crl. Appeal No.1245/2011** -2- accused, on 08.05.2007 at 18.15 hours, caused a stab injury on the deceased on the inner end of the top of left shoulder with a chisel, at a place in the 'paramba' situated between the house of the accused and the deceased, and the stab injury caused had penetrated into the chest cavity by cutting the lungs and the deceased Balan succumbed to the injuries on his way to the Hospital. Therefore the appellant was accused of having committed offence punishable under Section 302 IPC. 3. Before the trial court the prosecution had examined PW1 to P16 and marked Ext.P1 to P25 and identified MO1 to MO5 material objects. DW1 to DW4 are the witnesses examined on behalf of the defence and D1 to D2 (mistakenly marked as D1 with respect to both the documents) were the exhibits marked from the side of the defence. Exts.X1 to X6 were marked as 3[rd] party documents. 4. The case was initiated on the basis of Ext.P1 First Information Statement given by PW1, which was recorded by PW15, who registered Ext.P16 First Information Report **Crl. Appeal No.1245/2011** -3- on 21.35 hours on the date of the occurrence itself. PW16 initiated investigation based on Ext.P16. The appellant was arrested on the same date on 21.50 hours from the Taluk Hospital, Taliparamba, where he got admitted. The Investigating Officer had conducted examination of the dead body and prepared Ext.P3 Inquest Report in between 8.30 a.m and 11.a.m at the Co-operative Hospital, Taliparamba, on 09.05.2007. He had visited the scene of occurrence at 11.45 a.m on 09.05.2007 and prepared Ext.P4 Scene Mahazar. The appellant while questioned made Ext.P19 confession statement, based on which MO1 chisel was recovered by PW16 from a place to which he was led by the appellant, from the house of the appellant, by preparing Ext.P11 Mahazar, on 09.05.2007. The appellant was produced before the Magistrate Court on 09.05.2007 itself. MO1 chisel as well as the dress materials of the accused, MO4 and MO5, were sent for analytical examination along with other material objects and Ext.P25 is the report obtained, which is marked through PW16. The investigation was completed by PW16 and the final report was submitted **Crl. Appeal No.1245/2011** -4- implicating the appellant as accused of offences punishable under Section 302 IPC. 5. Evidence on record before the trial court consisted of the testimony of ocular witnesses, PW1 to PW3. PW12 is the Doctor who conducted autopsy of the dead body of the deceased and Ext.P13 is the Post Mortem Certificate issued. It is revealed that the deceased had sustained the following anti-mortem injuries: “1. Spindle shaped incised penetrating wound, 4.5x1.5 cm, obliquely placed on the inner end of top of left shoulder, the lower outer end being just above the outer end of collar bone. The wound entered in to the left chest cavity through the intercostal space and terminated by transfixing the upper part of left lung, 3 cm below its apex.(2.3x1 cm) chest cavity contained 500 ml of blood, mostly clots. Lung was collapsed and pale. The wound was directed downwards, and to the left for a total minimum depth of 8 cm.” PW12 when examined before the court opined that the injury noted in Ext.P13 can be caused with a weapon like MO1. He further deposed that the injury sustained by the deceased is an injury which is sufficient to cause death in the ordinary course of nature. PW1, though not supported his version in Ext.P1, deposed that he had witnessed the **Crl. Appeal No.1245/2011** -5- incident of the appellant stabbing the deceased. He had given Ext.P1 First Information Statement to PW16. He also admitted that he along with one Manoharan had taken the deceased in an autorickshaw from the scene of occurrence to the Co-operative Hospital, Taliparamba, and that the Doctors after examination of the deceased declared that he is dead. PW2 and PW3 are the wife and daughter of the deceased respectively. Their testimony is to the effect that there existed a dispute with respect to obstructions caused in the pathway which was used by the appellant. Evidence is to the effect that on the date of the incident, the son of the appellant had abused PW2 for the reason that a calf belonging to the deceased had entered into the property of the appellant. Evidence of PW2 and PW3 is that with respect to the incident the appellant had a quarrel with PW2 and PW3 at about 18.15 hours and the appellant pushed PW2 and at that time the deceased came to the scene and the appellant attempted to catch hold of the deceased. There occurred a scuffle and the appellant inflicted a stab injury on the shoulder of the deceased with a **Crl. Appeal No.1245/2011** -6- weapon taken out from his waste. Both of them had identified MO1 weapon. From the evidence of PW6 and PW7, it is brought out that there existed a dispute between the appellant and the deceased with respect to the obstruction caused on the pathway and that the appellant had lodged Ext.P5 complaint before the authorities of the panchayath and that an inspection was conducted and a report was submitted on the matter. Ext.P25 analytical report issued from the forensic science laboratory would reveal that human blood stains were detected on MO4 and MO5 dresses worn by the appellant at the time of the occurrence. The report would further indicate that MO1 contained blood stains. But it was found to be insufficient for determining its origin. 6. From the evidence available on record it is proved that the deceased Marangalath Balan died on the date of occurrence due to a stab injury sustained by him at the scene of occurrence. The ocular evidence of PW2 and PW3 would corroborate that the appellant had inflicted the stab injury with MO1 chisel. Evidence of PW16 would indicate **Crl. Appeal No.1245/2011** -7- that MO1 weapon was discovered based on Ext.P19 disclosure statement made by the appellant from a room inside the house of the appellant which fact was within his exclusive knowledge. There is also evidence to the effect that MO4 and MO5 dress materials were seized after arrest of the appellant, on the date of incident itself and it contained blood stains of human origin. Therefore, it remains proved that the appellant had caused this stab injury on the deceased at the scene of occurrence, on the date and at the time as alleged by the prosecution and that the deceased died of the injury sustained. 7. While questioned under Section 313 of Cr.PC, the appellant gave a statement that the deceased along with PW2 and PW3 had attacked him with a wooden stick and inflicted injuries and the deceased tried to inflict a stab injury on the appellant with a weapon, which he could ward off. According to the appellant, his son-DW4 came to the spot and attempted to rescue the appellant and at that time PW1 had attempted to inflict an injury on the appellant with a knife. But the appellant escaped from such an injury and **Crl. Appeal No.1245/2011** -8- there is a chance that the deceased might have sustained the injury at that time. From the evidence of PW13 Doctor, who examined the appellant at the Taluk Head Quarters Hospital, Taliparamba, it is revealed that the appellant was admitted with some minor injuries at about 7.20 p.m on the date of occurrence. Ext.P14 is the wound certificate issued with respect to his examination. The injuries noted therein are some superficial skin abrasions and lacerations, as well as three contusions at different parts of the body. It is noted in Ext.P14 that the appellant was brought to the hospital by his son, DW4. History of the alleged cause of injuries noted in Ext.P14 is an assault by the deceased, PW2, PW3 and another daughter of the deceased with a stick at about 7 p.m on the date of incident. Evidence is to the effect that the appellant was arrested while he was undergoing treatment at the Taluk Head Quarters Hospital. From the evidence adduced as above, it cannot be disputed that the appellant had also sustained some minor injuries in the incident. Version attempted to be put forth by the appellant in the statement made under Section 313 Cr.PC **Crl. Appeal No.1245/2011** -9- as well as in the defence evidence by examining DW4 is that, the deceased along with his wife and children had beaten the appellant with wooden stick and caused injuries and had also attempted to inflict injury with a weapon. He also made an attempt to establish a case that PW1 had attempted to cause a stab injury on the appellant with a weapon. But there is no proper explanation given by the defence with respect to the stab injury sustained on the deceased. The court below having found that, there was no pre-meditation on the part of the appellant and that there occurred a fight between the accused and deceased, observed that the appellant had acted in a heat of passion and that he had not taken any undue advantage over the deceased. It is found that the act of the appellant would come under the exemption provided under Section 300 IPC and he is liable to be convicted only under Part -I of 304 IPC. 8. The foremost contention raised by the counsel for the appellant is that, the court below went erred in accepting the testimony of the PW2 and PW3 and giving **Crl. Appeal No.1245/2011** -10- credence to their version. He had pointed out that PW16 had questioned PW2 and PW3 on 09.05.2007 and they have identified MO1 weapon. But the prosecution had failed to produce any statement recorded from those witnesses. The statements of PW2 and PW3 recorded on 14.05.2007 under Section 161 Cr.PC alone are available in the Case Diary. Neither the witnesses PW2 and PW3, nor the Investigating Officer (PW16) has got a case that any statement of PW2 and PW3 were recorded on 09.05.2007. What is deposed by PW16 is only that they were questioned on the next day of incident. Therefore, the non availability of any statement of PW2 and PW3 made on 09.05.2007, cannot be taken as a ground to allege failure on the part of the investigation. 9. Vehement arguments were advanced to contend that Ext.P16 FIR was prepared subsequently and it is antdated or anti-timed. Learned counsel for the appellant contended that the First Information Statement as well as FIR was prepared only on the next day, after preparing Inquest Report as well as Scene Mahazar. In support to such a contention it is pointed out that Ext.P16 FIR had **Crl. Appeal No.1245/2011** -11- reached the Magistrate Court only at 3 p.m on 09.05.2007. It is further contended that no proper explanation is forthcoming from the side of the prosecution regarding the delay in forwarding the FIR to the Magistrate Court, which is situated in the close by compound of the police station. In this regard, learned counsel had drawn our attention to the provisions contained in 167 Cr.PC, which insists that the officer in charge of a Police Station shall submit a report regarding the commission of the offence to the Magistrate empowered to take cognizance, forthwith. He had also placed reliance on the decision in **Arjun Marik and others v. State of Bihar (1994) Supp (2) SCC 372),** in order to content that, the delay in sending a report to the Magistrate will vitiate the investigation as well as the prosecution case. But in the case at hand, we take note of the fact that Ext.P1 First Information Statement as well P16 FIR contains a dated signature of PW1. The date noted on his signature is 08.05.2007. PW1 had deposed before the court that he had given Ext.P1 statement on the date of the occurrence itself. Further, it is to be noted that the **Crl. Appeal No.1245/2011** -12- appellant was arrested at 9.15 p.m on 08.05.2007 itself, as revealed from Ext.P17 Memo of arrest as well as P18 Inspection Memo. Ext.P17 and P18 contains the crime number of the case registered. Further, it is evident from Ext.P3 Inquest Report, which was prepared on 8.30 a.m on 09.05.2007, that the crime number was noted therein. The relevant entries are marked as Ext.X3, which is proved through DW1, the Additional Sub Inspector of Police, who was examined as a defence witness. From the above aspects it is evident that the allegation that Ext.P16 FIR was registered only on 9.5.2007 cannot be accepted. PW1 was not cross examined with respect to the date and time of giving Ext.P1 statement. Further, the argument now advanced is that the delay caused in forwarding the FIR to the Magistrate Court is not explained and that the particular column contained in Ext.P16 for noting the time of despatch was kept blank. But when P15 was examined before the court, no question was put to the said witness about the reason for causing the alleged delay in forwarding the FIR. Even though this Court is convinced that the FIR **Crl. Appeal No.1245/2011** -13- had reached the Magistrate Court only at 3.p.m on 9.5.2007, we do not find any material to hold that there occurred any manipulation with respect to recording of Ext.P1 statement or with respect to the registration of Ext.P16 case. Even if there occurred any delay in forwarding FIR to the Magistrate Court, it can be held that the same has not affected genuineness of the prosecution case nor had caused any prejudice to the defence. Hence, the contentions on this aspect cannot be accepted as a ground for acquittal. 10. Another contention raised by learned counsel for the appellant is that no reliance can be placed with respect to recovery of MO1 chisel based on the alleged disclosure statement. It is pointed out that PW10 and PW11, who were cited as witnesses to the recovery, have not supported the prosecution. But it is pertinent to note that PW11 had admitted his signature in Ext.P11 Mahazer prepared for recovery of MO1. Contention of the appellant is that the recovery of MO1 is an evidence which is planted and its genuineness and veracity cannot be accepted. In support of **Crl. Appeal No.1245/2011** -14- such contention it is pointed out that PW16 had visited the scene of occurrence for preparing Ext.P4 Scene Mahazer. It is admitted in evidence that he had noticed the house of the accused which is situated only about 10 meters away from the spot of the incident. Contention is that the investigating officer, having knowledge about the commission of the offence by the accused, had failed in making any inspection in the house at that time. It is specifically pointed out that the appellant was in custody of the police at the time when Ext.P4 was prepared. But, that by itself will not in any manner discredit the version of PW16 with respect to the disclosure statement made by the appellant and with respect to discovery of MO1 from his house to which place he was led by the appellant. Learned counsel for the appellant pointed out that, while examining PW1 had deposed that, at the time when Ext.P4 Scene Mahazer was prepared the house of the appellant was seen locked. But there is noting mentioned in Ext.P11 as to who had opened the house for recovery of MO1. Going by Ext.P11 there is nothing to indicate that, at the time of the recovery the **Crl. Appeal No.1245/2011** -15- house was remaining locked. Therefore merely because there is a mention that at the time when Ext.P4 Scene Mahazer was prepared the house remained, locked it will not in any manner discredit the version of recovery of MO1 as pointed out by the appellant. There is no case that the house was remaining locked at the time when the investigating officer was led the appellant for recovery of the weapon. 11. Much argument was advanced on the aspect that the injuries sustained by the deceased cannot be caused with MO1 chisel. Attention of this court was drawn to the description of the injury contained in Ext.P13 Post Mortem Certificate as well as described in the deposition of PW12 Doctor. Learned counsel pointed out that, the nature of the injury mentioned is that “spindle shaped incised penetrating wound 4.5 X 1.5 c.m.” Further it is pointed out that the total minimum depth of the wound is noted as 8 c.m. Referring to Ext.P11 Recovery Mahazer it is pointed out that the total length of the chisel noted, including its handle, is only 19 c.m. and the width of the blade is noted is only 4.5 c.m. **Crl. Appeal No.1245/2011** -16- According to learned counsel, a spindle shaped injury cannot be caused with such a weapon. It is also contended that the description is that MO1 chisel was not having a handle and hence no force can be exerted to the extent of causing an injury having a depth of 8 c.m. In this regard it is pertinent to note that, the expert evidence adduced is that of PW12 Doctor, who opined that the injury noted on the dead body can be caused with MO1 weapon. In the crossexamination a specific question was put to him as to whether a dagger with one end sharp can cause a spindle shaped injury. His answer was that it can cause such injury provided the tip of the weapon is pointed and sharp. But there is no cross-examination of PW12 Doctor on the aspect that a spindle shaped injury cannot be caused with MO1 chisel. There is no other authenticated expert evidence or authority available before this court to draw any inference that a spindle shaped injury cannot be caused by a chisel having a width of 4.5 c.m. There is also no evidence with respect to the contention that no force can be exerted by MO1 chisel to cause an injury having a depth of 8 c.m. **Crl. Appeal No.1245/2011** -17- Going by Ext.P11 the total length of the chisel noted, may be including the handle portion. But the length of the blade portion alone is not specifically mentioned. However, there is no evidence to show that the blade portion of the chisel is having only a length less than 8 c.m. It is true that the origin of the blood stains contained on MO1 chisel cannot be brought out in chemical examination, because of insufficiency of the stains available. But all other evidence are corroborative regarding recovery of the weapon as well as the medical opinion to the extent that the injury can be caused with such a weapon. Hence the prosecution case stands established that the appellant had caused the stab injury with MO1 weapon which led to death of the deceased. 12. Another contention raised by the appellant is that the prosecution had failed in giving proper explanation with respect to the injury sustained by the appellant. From Ext.P14 'Accident Register-cum-Wound Certificate' marked through PW13 Doctor, it is evident that the appellant had sustained some superficial abrasions, lacerations and **Crl. Appeal No.1245/2011** -18- contusion. The history of the alleged cause mentioned in Ext.P14 is that the deceased along with his wife and children had beaten him with wooden stick. It is pointed out that evidence of PW2 and PW3 cannot be believed since they have denied of causing any such injuries to the appellant. Learned counsel had placed reliance on the decision of the hon'ble Supreme Court in **Lakshmi Singh and others V. State of Bihar (AIR 1976 SC 2263)** . In the said case it is observed by the hon'ble apex court that, it is the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused in the course of the occurrence. It is observed that, where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed, which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. But in the said decision itself reference is made to an earlier **Crl. Appeal No.1245/2011** -19- decision of the hon'ble Supreme Court in **State of Gujarat V. Bai Fatima (AIR 1975 SC 1478)** wherein it is observed that, there may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. In a recent decision of this court in **Vijayan V. State of Kerala (2015 KHC 416)** one among us Justice B. Sudheendra Kumar (J) speaking for the bench observed that, when the prosecution comes with a definite case that the offence has been committed and proves its case beyond any reasonable doubt, it became hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. The above proposition is held after reference to various decisions of the hon'ble Supreme Court, wherein **Crl. Appeal No.1245/2011** -20- it is observed that, when the injuries sustained to the accused were neither fatal nor they have caused any threat to life, it reduces the burden upon the prosecution to explain the injuries on the accused. In the case at hand, as already observed, the injuries noted on the body of the appellant were only superficial abrasions and contusions of small sizes. Therefore we are not inclined to accept the contention that the non-explanation of such injuries found on the body of the appellant will in any manner be fatal to the prosecution, particularly when the evidence of PW2 and PW3 are found to be reliable and credit worthy in establishing the guilt of the appellant. 13. Lastly, learned counsel for the appellant raised a contention that the guilt of the appellant to sustain a conviction under Part I of Section 304 is not established, because there is no evidence that the appellant had inflicted an injury which is likely to cause death. In this regard he had placed reliance on a decision of the Madras High Court in **Karuppannan and another V. State (2007 CriLJ 1881)** . On the facts of the said case the court observed that **Crl. Appeal No.1245/2011** -21- the entire occurrence took place due to sudden quarrel without any premeditation and only after the exchange of abusive and filthy language. There the accused had inflicted a stab injury on the left side of the chest of the deceased, which the court observed that, “unfortunately proved fatal”. Pointing out that the accused had not given any further stab that court observed that it is crystal clear that he had no intention to cause the death. In the said decision the Madras High Court had relied on a decision of the hon'ble Supreme Court in **Bunnilal Chaudhary V. State of Bihar (2006 CriLJ 3297)** . There also it is observed that, when the accused has not attempted to cause serious injury on any vital part of the body of the deceased, it cannot be said that there was any motive or intention to have murdered the deceased. But the above decisions deals with clause 'thirdly' of Section 300 IPC. Counsel had also placed reliance on the decision in **Daya Nand V. State of Hariyana (AIR 2008 SC 1823)** . The hon'ble Supreme Court observed therein that, the word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished **Crl. Appeal No.1245/2011** -22- from a mere possibility. It is observed that the death should be the “most probable” result of the injury, having regard to the ordinary course of nature. But the evidence in the case at hand, as discussed and held by the trial court, would clearly fall within Explanation 4 to Section 300 in order to bring the guilt as of culpable homicide which is not amounting to murder. Circumstances brought in evidence will lead to the conclusion that the incident occurred in sudden fight in the heat of passion upon a sudden quarrel occurred. There is also no evidence that the appellant had taken any undue advantage or acting in a cruel or unusual manner. Therefore evidently the appellant is guilty of culpable homicide not amounting to murder. Whether it will fall under Part-I or Part-II of Section 304 depends on the question as to whether the appellant had any intention of causing death or of causing bodily injury which is likely to cause death. Medical evidence adduced in the case would establish that the injury caused was sufficient to cause death in the ordinary course of nature. Therefore it is established that the appellant had intentionally caused such **Crl. Appeal No.1245/2011** -23- an injury which is likely to cause death. Hence we are not inclined to accept the contention that the case will fall under Part-II of Section 304. 14. Conclusion of the above discussions is that, the conviction imposed by the trial court against the appellant under Section 304 Part I need to be confirmed. Learned counsel for the appellant had made an appeal to this court to take a lenient view with respect to the quantum of sentence imposed pointing out that the appellant is suffering from serious ill-health. Our attention is drawn to the evidence adduced by examining DW3, Consultant Cardiologist, from whose testimony it is evident that the appellant had a heart attack during December, 2007 and had undergone an interventional procedure of angioplasty. Exhibit D1 is the discharge summary issued with respect to treatment of the appellant which was undergone in 2007. Considering the circumstances prevailing as mentioned above and also considering the over all situations and the fact there is no previous conviction proved against the appellant and the fact that he is not involved in any other **Crl. Appeal No.1245/2011** -24- criminal case, we are inclined to modify and reduce the sentence of rigorous imprisonment to a period of 5 years and to pay a fine of Rs.1,50,000/- and in default to undergo simple imprisonment for a further period of one month. If the fine amount is realized the entire amount shall be paid to PW2, the wife of the deceased under Section 357 (1) (b) of Cr.P.C. 15. In the result the appeal stands allowed in part as mentioned above. The trial court will take necessary steps to execute the sentence. 16. The appellant is entitled to set-off under Section 428 of Cr.P.C for the period of detention undergone in connection with this case. Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** . ## **DG/AMG** True copy P.A. to Judge