SABU @ OORAN SABU S/O POULOSE v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** ## **CRL.A.No.202 OF 2016(A)** **AGAINST THE JUDGMENT IN SC 187/2014 DATED 28-07-2015 OF ADDITIONAL DISTRICT COURT, PALA** **AGAINST THE ORDER/JUDGMENT IN CP 48/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA** **CRIME NO.1660/2013 OF Pala Police Station , Kottayam** ## **APPELLANT/ACCUSED:** **SABU @ OORAN SABU S/O,POULOSE, MAZHUVANCHERIL VEEDU, PAMPOORAMPARA BHAGOM, EDAPPADY KARA, BHARANANGANAM VILLAGE.** **BY ADV. SRI.S.SACHITHANANDA PAI** ## **RESPONDENT/STATE & COMPLAINANT:** - **1 STATE OF KERALA REP BY THE PUBLIC PROSEUCTOR, HIGH COURT OPF KERALA, ERNAKULAM 682 031.** - **2 THE CIRCLE INSPECTOR OF POLICE PALA POLICE STATION, PALA 686 575.** ## **BY SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.202 OF 2016(A)** 2 ## **JUDGMENT** ## Hariprasad,J Sole accused in SC No.187/2014 before the Sessions Court, Kottayam challenges conviction and sentence imposed on him by the trial court under Section 302 IPC. 2. Prosecution case stated shortly is thus:- The appellant had enmity towards deceased Anilkumar. At about 6.45 p.m on 05.10.2013, while deceased Anilkumar along with PWs 2, 3 and 4 were sitting on a rock in a hillock the accused came through a beaten track below the place where the deceased and others sat and questioned their act of singing songs loudly in public. According to the version of the appellant in his examination under Section 313 Cr.P.C., he admitted that he questioned the deceased for singing songs sitting close by a house, where a death had occurred on the same day. When the appellant challenged the deceased and his friends, the deceased sharply reacted towards the appellant and therefore, there ensued a push and pull. It has come out in record that the appellant is a person who had lost his right hand in an accident **CRL.A.No.202 OF 2016(A)** 3 much prior to the incident. When the deceased and accused rolled over, the deceased sat on the appellant and throttled him. The appellant in a lying down position inflicted stab injuries on the deceased which proved to be fatal. According to the prosecution, the deceased had intentionally inflicted the fatal stab injury. 3. To substantiate the prosecution case, 28 witnesses were examined on the side of the prosecution and 36 documents were marked. Two defence witnesses were also examined and six documents were marked on the defence side. Material objects 1 to 15 were identified. 4. After considering the evidence, the trial court found the appellant guilty of murder and convicted him under Section 302, IPC imposing imprisonment for life and fine. 5. Heard the learned counsel for the appellant and the learned senior Public Prosecutor. 6. Learned counsel for the appellant contended that the evidence on record was not properly appreciated by the trial court. According to him, the conviction imposed on the appellant **CRL.A.No.202 OF 2016(A)** 4 under Section 302, IPC is legally unsustainable. Even if the entire prosecution evidence is accepted, the learned counsel for the appellant contended, the court should have seen that the appellant was acting in exercise of his right of private defence. If not, one of the other exceptions to Section 300 IPC would have been attracted. 7. Learned Prosecutor opposed the contentions and contended that the trial court has considered all the matters elaborately and correctly came to the conclusion that the appellant is guilty of murder. 8. The only point not in dispute is the fact deceased Anilkumar succumbed to fatal injuries inflicted on right side of his chest. PW24 conducted autopsy on the body of the deceased and issued Ext.P23 post mortem Certificate. The ante mortem injuries read as follows:- “1. Incised penetrating wound 2.7 cm x 1 cm, vertical, with sharply cut upper end, the other end was blunt on right side of front of chest, its upper end was 14 cm outer to midline and 18 cm below front fold of armpit. The wound entered to the chest cavity through 8[th] intercostal space, piercing the diaphragm and terminated in right lobe of liver, **CRL.A.No.202 OF 2016(A)** 5 2.5 x 0.5 cm. The wound track was directed downwards backwards and to the left for a total minimum depth of 9 cm. Right chest cavity contained 1.5 litres of blood and abdominal cavity contained 1 litre of blood. Right lung was pale and collapsed. 2. Incised wound 5.3 x 1 cm x 4 cm, horizontal, on back of left thigh (7 cm above knee) 64 cm above heel of foot. The lower border of the wound showed splitting of tissue 2 cm inner to its outer end and corresponding tag of skim noticed on upper boarder. 3. Abrasions 1.7 x 1 cm on forehead in midline 2 cm above root of nose 4. Abraded contusion 3 x 1.2 x 0.5 cm on right side of front of chest overlying collar bone 8 cm outer to midline. 5. Abraded contusion 3 x 1.7 x 0.5 cm oblique of left side of front of chest 10 cm outer to midline and 15 cm below collar bone. 6. Abraded contusion 6 x 3 x 0.5 cm oblique, on left side of front of chest, its lower inner end was 10 cm outer to midline and 24 cm below collar bone. 7. Abrasion7 x 2 cm, vertical, on right side of back of chest 11 cm outer to midline and 2 cm below tops of shoulder. 8. Abrasion 3 x 2.5 oblique, on left side of back of trunk 11 cm outer to midline and 10 cm above tops of hip bone. 9. Abraded contusion 5.5 x 3 x 0.5 cm on back of right forearm 4 cm above wrist 10. Multiple small abrasions of varying sizes from 1.5 x 1 **CRL.A.No.202 OF 2016(A)** 6 cm to 0.5 x 0.3 cm over an area 9 x 6 cm on back of right elbow and adjacent parts of arm and forearm. 11. Multiple small abrasions of varying sizes from 1.5 x 1 cm to 0.5 x 0.3 cm over an area 5 x 4 cm on front of right knee 12. Abrasion 3.5 x 2 cm on back of left elbow 13. Abrasion 3 x 1 cm on back of left forearm 2 cm below elbow. 14. Abrasion 2 x 1.5 cm on outer aspect of left ankle over lateral malleolus. 15. Abrasion 3.5 x 2 cm, vertical on outer aspect of back of left thigh 22 cm above knee. 16. Abrasion 10 x 5 cm on lower quadrant of left buttock 17 cm below top of hip bone. 17. Abrasion 3 x 1.5 cm on upper outer quadrant of left buttock 12 cm below top to hip bone. 18. Multiple small abrasions of varying sizes from 2 x 1.5 cm to 0.5 x 0.3 cm over an area 9 x 5 cm on front of left knee.” 9. According to PW24, Anilkumar's death was due to incised penetrating wound sustained to chest (injury No.1 in Ext.P23). Testimony given by the witness would go to show that MO15 Knife was thrust into body of the deceased and the weapon having a blade length of 8.5. c.m. had gone into the **CRL.A.No.202 OF 2016(A)** 7 chest cavity to a depth of 9 c.m. This will clearly show the force with which the injury was inflicted. Despite cross-examination, we find no reason to discard the testimony of PW24 regarding the cause of death. Therefore, there cannot be any dispute to the proposition that Anilkumar's death was on account of a stab injury inflicted on him. 10. Next question to be decided is whether the appellant is responsible for causing the injury. Ext.P1 is the FIS lodged by the mother of the deceased on 16.10.2013 at about 4 O'clock in the morning. Admittedly, she is not an eye witness. On 05.10.2013 at about 7.30 p.m she was informed by PW2-Rajesh that Anilkumar sustained a stab injury and he was laid on the varandah of PW6's house. He was taken to Marygiri Hospital, Bharamanganam and from there he was referred to Taluk Hospital, Pala. After giving first aid, he was immediately moved to Medical College Hospital, Kottayam and on the way he succumbed to the stab injuries. PW1 testified in support of the recitals in Ext.P1 FIS. Despite cross-examination on this witness we find no reason to discard her testimony. **CRL.A.No.202 OF 2016(A)** 8 11. PWs 2, 3 and 4 are the material witnesses regarding the incident. PW2 is an eye witness to the whole incident whereas PW2 and 4 have seen a part of the incident. PW2Rajesh and deceased were closely known. He narrated that the incident was on 05.10.2013 at about 6.45 p.m. At that time all of them were sitting on a rock by the side of PW4's house. It has come out in evidence through PWs 2, 3 and 4 that prior to the incident, all of them had consumed liquor from PW4's house and when his wife (PW5) came there, she draw them away for taking liquor from her house. Therefore, they came to a vacant rocky area and sat on a rock. They started singing old film songs. At that time the appellant came through a beaten track running lower to the place where PW2 and others were sitting. When appellant in abusive language questioned their singing, the deceased got provoked and challenged the appellant. According to PW2, appellant climbed up and caught hold of the deceased by his collar. In the ensued push and pull, they started rolling down and at one point the appellant came lying down and the deceased sitting on him. At that time PW4 went to his house for **CRL.A.No.202 OF 2016(A)** 9 getting a match box. Immediately thereafter, the deceased cried out that the appellant stabbed him. The deceased stood up and his loin cloth pealed off. He was profusely bleeding from right side of chest. PW2 supported him and he was taken to a nearby house belonging to PW6. Two dhothies were taken from PW2, one for the deceased to wear and the other for tying his wound. It is the version of PW2 that when PW6-Radhamani asked as to what happened, the deceased told her that it was the appellant who inflicted the injury. This version is supported too by PW6 as well, amounting to a dying declaration. Immediately an autorickshaw was procured and he was taken to hospital. PW2, PW1 and deceased's sister went to a local hospital and then to Taluk Hospital, Pala. From there he was taken to Medical College Hospital, Kottayam in an ambulance and on the way he died. This version of PW2 could not be shaken in cross-examination. It is an admitted case that the appellant had lost his right hand in an accident. It is also spoken to by PW2 and other witnesses that the appellant used to carry a knife. The case put forward by the appellant at the time of cross-examination is that he was **CRL.A.No.202 OF 2016(A)** 10 engaged in grazing cattle and for cutting grass, he used to carry a knife. 12. PW2 and other witnesses deposed that the appellant was a habitual offender. Eventhough the investigating officer has such a case, we find no material produced before the trial court to show that the appellant was a habitual offender and he had been convicted previously. We find no charge framed by the trial court in this regard by invoking Section 211(7) Cr.P.C. Therefore, the question of adducing evidence under Section 236 Cr.P.C did not arise before the court below. All the witnesses deposed that the appellant was of a bad character. The question was opposed by the defence counsel, justifiably, in the absence of any charge framed regarding his previous conviction. However, we are of the view that testimony of PW2 remains credible to convince the mind of the court that the appellant had inflicted the injury on the deceased, while sitting atop him, by using MO15 knife and injury No.1 proved to be fatal. 13. This testimony of PW2 gets support from the evidence of PWs 3 and 4. PW3 was in the company of the deceased and **CRL.A.No.202 OF 2016(A)** 11 PW4 at the time of incident. He also said that when they were singing while sitting on a rock close to PW4's house, the appellant came and questioned their act in filthy language. When deceased reacted, the appellant climbed up and engaged with the deceased in a scuffle. PW3 did not see the incident but he heard the deceased saying that the appellant had stabbed him. On seeing the injury on the deceased, he became petrified and ran towards the house of PW4. Immediately PW4's wife (PW5) sent him away. Despite cross-examination on this witness, he contended that he heard the deceased saying that the appellant inflicted the stab injury. 14. PW4 also supported the prosecution case. As mentioned earlier, he did not witness the incident as at that time he had gone to his house for taking a match box. On hearing the commotion, PW4's wife (PW5) did not allow him to go to the place of occurrence and he was pushed to go inside their house. But, after the incident, he saw PW2 carrying the deceased with bleeding injuries. It is the common case of PWs 4 and 5 that they did not allow the deceased to be laid in their house and the **CRL.A.No.202 OF 2016(A)** 12 deceased and PW2 had to go away to another place. PWs 2, 3, 4 and 6 had given statement before the Magistrate under Section 164 Cr.P.C. They stood by their previous statements and no dent or discredit could be made in their testimony. 16. PW5, as stated above, supported the prosecution case to some extent. She had seen the scuffle between the deceased and appellant. On seeing the skirmish, she took her husband home and did not allow him to meddle with the matter. Her testimony also supports the prosecution case. PW6-Radhamani deposed that the deceased informed her that the appellant had inflicted injuries on him. She gave dhothies for closing the wound and for the deceased to wear. Her testimony also remains believable despite cross-examination. 16. PW7 was examined by the prosecution to show that the appellant had previous enmity towards the deceased on account of some monetary transactions. It is the case of the prosecution that the deceased asked wages for cutting and removing some trees from the compound of the appellant for which the latter did not yield. It is the case suggested in cross- **CRL.A.No.202 OF 2016(A)** 13 examination that there was no agreement between the appellant and the deceased for paying wages. Instead, they agreed to host a party for the work done. 17. PW8 is the wife of the deceased. She deposed that at about 4.30 p.m on the fateful day, she had met the appellant from a small town nearby and he informed her that as the deceased would be late, he would arrange a vehicle for her to go back to her house. This witness was examined to show that the appellant was planning for murder at that time. Materials supplied by this witness is not sufficient to accept the prosecution case about the previous enmity. PW9 is an autorickshaw driver in which the appellant had been taken to hospital. 18. Ext.P27 is the wound certificate in relation to the appellant which shows only minor abrasions referable to the rolling over by him and the deceased on a rocky surface. PWs 10 and 11 did not support the prosecution case. PWs 13 to 17 are formal witnesses. Out of which PW16 is the second wife of the accused. It is the prosecution case that he had attacked her and she preferred a complaint against him. It has come out in **CRL.A.No.202 OF 2016(A)** 14 evidence that later, the appellant was acquitted in this case. PW19 is the Scientific Assistant, who collected samples from the crime scene. 19. PW20 is the witness examined by the prosecution to prove recovery of MO15 Knife by PW28, the investigation officer. Ext.P19 is the mahazar, in which PW20 has put his signature. This recovery under Section 27 of the Evidence Act has been properly proved by PWs 28 and 20. We find no reason to discard the testimony of these witnesses relating to recovery of MO15 Knife as pointed out by the accused while in custody. 20. Other mahazar witnesses are not relevant for our purpose. PW23 is the Magistrate who recorded the statement of the aforementioned witnesses under Section 164 Cr.P.C. Some contradictions were proved through PW23, which may not go to the advantage of the accused to establish his innocence. 21. PW26 recorded Ext.P1 FIS and registered Ext.P25 FIR. PW27 is the Doctor, who examined the victim and accused and issued Ext.P27 wound certificate in respect of the appellant. 22. DWs 1 and 2 were examined on the side of the **CRL.A.No.202 OF 2016(A)** 15 accused who say that he also sustained some injuries in the incident. 23. Learned counsel for the appellant forcefully argued that the appellant was taken for medical examination after arrest and DW1 had issued Ext.D4 certificate. There are some nail marks seen on the neck of the appellant, which, according to the learned counsel for the appellant was the result of throttling by the deceased sitting on appellant's body. When the appellant was examined under Section 313 Cr.P.C he submitted a written statement stating that the deceased throttled him and despite inflicting an injury on thigh, he was not freed from the clutches of the deceased. Eventhough he did not mention that he inflicted the stab injury, which proved to be fatal, on the deceased, learned counsel pointed out that there are materials to infer that the appellant inflicted injury on the deceased in an act of private defence. Further, the benefit under exception 4 of Section 300 IPC is also claimed by the appellant. 24. On an evaluation of the evidence it will be clear that the appellant inflicted fatal injury on the deceased. However, the **CRL.A.No.202 OF 2016(A)** 16 admitted prosecution case is that, there was a scuffle between the appellant and deceased and they started rolling over an inclined rocky area resulting in abrasions and small contusions on the body of both. It has also come out in evidence through the reliable testimony of PW2 that the appellant was lying down on the ground and the deceased was sitting on him. The appellant's case is that the deceased suffocated him by throttling and therefore, he had no other way than to inflict the stab injury to free him. We find no materials to accept the case of private defence for the evidence. 25. In order to claim the benefit of exception 4 to Section 300 IPC, the learned counsel for the appellant relying on **Arjun and Another v. State of Chhattisgarh** (2017 KHC 6128 : AIR 2017 SC 1150) contended that the facts in both the cases are almost similar and the principles therein are squarely applicable to this case. The Supreme Court considering the facts and circumstances as referred to in paragraphs 19 to 24 held that to invoke the 4[th] exception to Section 300 IPC, four requirement must be satisfied (i) it was a sudden fight; (ii) there was no **CRL.A.No.202 OF 2016(A)** 17 premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 26. It has been held that the cause of quarrel is not relevant nor it is relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor, but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. According to the learned counsel for the appellant, the physical condition of the appellant and predicament in which he was put by the deceased should be considered. Admittedly, the appellant is a person who had lost his right hand and in that way, he was handicapped. Secondly, he was lying down and when the deceased sat on his chest, he was trying hard to extricate himself. It is the case of the appellant that the deceased was constricting his neck so as to suffocate him. At this juncture, the appellant had no other way than to inflict stab injury, is the contention. Going by the testimony of the prosecution witness, there is a probability that the **CRL.A.No.202 OF 2016(A)** 18 deceased could have over powered the appellant which must have necessitated him to act in an unusual manner. Having regard to the entire facts and circumstances we are of the view that the appellant is entitled to claim that he is not guilty of murder, but liable to be proceeded against under Section 304 Part 1 IPC. 27. Learned prosecutor submitted that the appellant's antecedents are not good and he does not deserve any leniency in the matter of punishment. Although there are allegations in the final report that he was involved in other offences earlier, we find no material to hold that he is a habitual offender or a person who has previous conviction to his credit. However, considering the facts and circumstances, we find that the appellant is liable to undergo rigorous imprisonment for a period of 10 years and also liable to fine. In the result, this appeal is partly allowed. The conviction of the appellant under Section 302 IPC is altered to one under Section 304 Part 1 IPC. He shall undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs.1,00,000/- **CRL.A.No.202 OF 2016(A)** **==> picture [13 x 8] intentionally omitted <==** (rupees one lakh only). In default of payment of fine, he shall undergo imprisonment for a further period of one year. If fine is realised, it shall be paid to PW8, wife of the deceased, as compensation under Section 357(1) Cr.P.C. Appellant is entitled to set off for period which he had already undergone in this case. **Sd/-** **A.HARIPRASAD,JUDGE Sd/N.ANILKUMAR,JUDGE** dlK 15.06.2020