Shiji, Shijo and Prakasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** ## **CRL.A.No. 1718 of 2013** **AGAINST THE JUDGMENT IN SC 238/2011 of ADDL. SESSIONS COURTII (SPECIAL), KOTTAYAM DATED 7-12-2013** **CRIME NO. 766 /2009 OF Ettumanoor Police Station, Kottayam** **APPELLANTS/ACCUSED NOS.1, 2 AND 4:** - **1 SHIJI, AGED 40 YEARS, S/O.JOSEPH (LATE), KURUVIKKUNNEL (VADAKEMALA), ETTUMANOOR VILLAGE, KOTTAYAM.** - **2 SHIJO AGED 36 YEARS** **S/O.JOSEPH (LATE), KURUVIKKUNNEL (VADAKEMALA), ETTUMANOOR VILLAGE, KOTTAYAM.** - **3 PRAKASAN AGED 50 YEARS** **S/O.NEELAKANDAN, KUNNEL VEETTIL, (VADAKKEMALA), VETTIMUKAL BHAGOM, ETTUAMANOOR VILLAGE.** **BY ADVS. SRI. P. VIJAYA BHANU (SR.) SRI. M. REVIKRISHNAN SRI. VIPIN NARAYAN** Crl.Appeal No.1718/13 -:2:- ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **BY ADV.PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2018, THE COURT ON 21/8/2018 DELIVERED THE FOLLOWING:** ## **JUDGEMENT** ## _**Shaffique, J.**_ The appeal is filed by accused 1, 2 and 4 challenging the conviction and sentence, by which the Sessions court found them guilty of having committed murder of one Sri. Narayanan. 2. Prosecution alleged that on 6.12.2009 by about 2 pm, accused 1 to 4, trespassed into the house of Narayanan. There was a verbal altercation between them, which was followed by a scuffle. PW2 intervened and she was pushed aside causing her hurt. The 3[rd] accused called upon the other accused to beat Narayanan and accordingly the first accused, took a spade from the compound of the victim. Accused 2 and 4 held him and 1[st] accused inflicted a blow on the victim’s head. Victim fell down Crl.Appeal No.1718/13 -:3:- and all the accused ran away from the scene. 3. Crime was registered by the Sub Inspector of Police, on the basis of statement given by PW1, regarding the incident. PW13, Circle Inspector of Police conducted investigation, and final report was filed before the Magistrate’s Court. The case was committed to the Sessions Court and after framing charges, the case was tried. During trial, 3[rd] accused died. Prosecution examined PW1 to PW14, marked Exts. P1 to P22, and identified MO1 to MO12. After questioning the accused under section 313 Cr.P.C., defence examined a neighbour as DW1. Defence marked Exts. D1 to D4. 4. Sessions Court found the accused guilty under sections 447, 341 and 302 read with section 34 of I.P.C. and sentenced them to imprisonment for life and to pay a fine of `25,000/- for the offence under section 302 read with section 34 of IP.C. They were also sentenced to undergo imprisonment for one month for the offence under section 447 read with section 34 of I.P.C and sentenced to pay a fine of `500/- each for the offence under section 341 read with section 34 of IP.C. Crl.Appeal No.1718/13 -:4:- 5. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor. The question involved in the appeal is the correctness of the finding of guilt by the court below. 6. Appellants raised the following points: - (i) Eye witnesses version of the incident is not believable. (ii) DW1’s version regarding the incident is more probable, in so far as the injury on the victim was due to an accident during a tussle and not a homicide. DW1's evidence was improperly discarded. (iiii) None of the accused entertained a common intention to commit murder in order to attract section 302 read with section 34 of I.P.C. (iii) Even assuming that the 1[st] accused had inflicted the injury, the offence could be punishable only under Part II of section 304 I.P.C. 7. PW1 has given the first information statement regarding the incident. Ext.P1 is the F.I.S. He is not an eye witness. He reached the spot on hearing a hue and cry. His Crl.Appeal No.1718/13 -:5:- version in the F.I.S and before court regarding the version of PW2 was different and he was declared hostile. 8. PW2 is the daughter of Narayanan. She deposed that on the fateful day, before the incident, there was an altercation between Narayanan and A4. Later when Narayanan was putting up a shed in his courtyard, A1 to A4 came. A2 and A4 caught hold of Narayanan, she tried to interfere and she was pushed down. A1 had a spade with him and A3 asked him to attack Narayanan. A1 inflicted a blow on Narayanan’s head with the blunt portion of the spade. Narayanan collapsed and fell down. The accused ran away. She called PW5, who came in an autorickshaw and the injured was taken to the Medical College Hospital. He was declared dead. She also deposed regarding the animosity, their family had with A3’s family. A1 and A2 are the sons of A3 and A4 is another neighbour. She identified the accused and the material objects, which included MO4 spade. 9. PW3 is the wife of deceased whose testimony was also in tune with the evidence tendered by PW2. PW4 is a child witness, son of PW2. He has also given evidence in the manner spoken by PW2 and PW3. Crl.Appeal No.1718/13 -:6:- 10. Despite the earnest attempt on the part of learned counsel for appellant to impress upon us that the version of DW1 is more probable, we are unable to subscribe to such a view. The evidence of PW2 to PW4 is unimpeachable and they are natural witnesses. Hence we have no hesitation in accepting the finding rendered by the court below with regard to the incident. 11. Ext.P4 is the postmortem certificate issued by PW8, the Forensic Surgeon. Following are injuries noted by PW8:- - _(i) Abraded contusion on top of left shoulder 5.5x0.7 cm. Front to back direction 9.5cm inner to top of shoulder._ _(ii) Abraded contusion on top of left shoulder 4x0.3 cm front to back direction 4x0.3cm., 2 cm inner injury No.1 (iii) Abraded contusion on back of left shoulder 3x1.5 cm., 2 cm., back to injury No.2._ _(iv) Lacerated wound on top of head 4x1 cm, front to back direction bone deep 11.5 cm, above pinna on left side, scalp contusion underneath over an area of 9x9 cm. A depressed comminuted fracture of skull underneath over an area of 7x4.5cm, 7.5 cm, above left ear. A subdural clot on left parietal region 6x6x0.5 cm. A laceration of left parietal lobe of brain 3x3x0.5 cm subdural and sub arachnoid haemorrhages noticed on both cerebral hemispheres. The brain congested and moderate flattening of gyri noticed.”_ 12. Doctor opined that injury no (iv) was the cause of death. The other abrasions would have been caused during Crl.Appeal No.1718/13 -:7:- scuffle and when he fell down after sustaining the blow on his head. 13. Next question that has to be considered is the role of each of the accused and whether they can be convicted for murder. 14. All the accused had entered the courtyard of Narayanan with the criminal intention to commit an offence and therefore finding of the court below that they have committed criminal trespass cannot be disturbed. 15. Accused 2 and 4 physically prevented Narayanan by holding him, which clearly amounts to wrongful confinement. 16. The only other question which requires consideration is whether the accused had the intention to commit murder. It is not in dispute that the incident occurred due to some sudden provocation. A3’s family and Narayanan’s family were neighbours. A2 and PW2 were having a relationship and a child was born to them. At the instance of Narayanan, PW2 filed a maintenance petition before the Family Court and the court ordered maintenance to be given. PW2’s version is that A2 and Crl.Appeal No.1718/13 -:8:- Narayanan had a wordy altercation between them just before the incident. DW1 was a witness on behalf of the prosecution, but prosecution did not examine him. As defence witness, he had a different case. He is also a neighbour of accused and Narayanan. He deposed that on hearing a cry, he reached the scene of occurrence. He saw Narayanan lying in the courtyard and was bleeding. When he asked PW2 about the incident, she told him that, while Narayanan was clearing the bushes, A1 started abusing him using obscene words, and when it continued, Narayanan took a spade from his property and attempted to attack A1, which was followed by a tussle, which caused the injuries. It is argued by the appellants' counsel that DW1’s version is supported by PW1. Court below rejected the evidence of DW1 only after referring to his previous statement to the police given under section 161 Cr.P.C. Reference is made to the proviso to Section 162 Cr.P.C. which reads as under:- _“_ _**162. Statements to police not to be signed- Use of statements in evidence** (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any_ Crl.Appeal No.1718/13 -:9:- _part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:_ _Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.”_ 17. It is trite that the statement recorded by the Police under section 161 Cr.P.C. can be used only when prosecution examines the person who had given the statement as a witness. The proposition is fortified by the judgment of the Apex Court in _**Mrs.Shakila Khader v. Nausher Gama and another**_ (AIR 1975 SC 1324). Paragraph 4 being relevant reads thus: _“4. We can see no satisfactory reason for not accepting the evidence of P.Ws. 3 and 4 which the two courts below had accepted after a careful consideration. There was occasion for the witnesses to notice the car because just a little earlier a girl was in danger of being run over by the car and she had to run back to avoid being hit by the car. As far as the evidence of P.Ws. 5 to 7 is concerned the less said the_ Crl.Appeal No.1718/13 ## -:10:- _better. They had obviously gone back on their statement given to the police and that is why they were allowed to be treated as hostile and cross-examined. It would have been better if their statements had been proved by the police officer who recorded them. But it has not been done in this case. Even so their evidence is interesting. P.W. 5 says that at the time of the accident their car was behind the bus and then when he was directing his attention towards the boat club the dash took place between the car and the scooter. The same criticism which we have made of the statement of the accused applies to this evidence also. P.W. 6 stated that he did not know how the accident took place. P.W. 7's evidence is to the same effect as P.W. 5's. As regards the evidence of D.W. 1 it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the police. Under Section 162 Cr. P. C. only witnesses on be half of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. Even so in the circumstances of this case his evidence, which is more or less similar to the evidence of P.Ws.5 to 7, cannot be accepted._ ” 18. Of course DW1’s evidence cannot be discarded, based on his previous statement under section 161 Cr.P.C., but still the trustworthiness of the said witness has to be adjudged based on evaluation of the entire evidence, including that of the prosecution witnesses. Admittedly, DW1 has not seen the incident. The genesis of the incident and what happened Crl.Appeal No.1718/13 -:11:- thereafter has been clearly spoken by PW2, PW3 and PW4. They are natural witnesses, and when their evidence is not shaken, we have no hesitation in accepting the version of prosecution witnesses. 19. The contention urged by learned counsel for appellants is that there was no intention on the part of the accused to commit murder. The incident happened without any premeditation and in a sudden fight. The facts of the case would show that they intended only to hit Narayanan and there was no intention to commit such a grave injury which has resulted in the death and even the accused did not know that such an injury would cause death. That apart, accused 2 and 4 did not entertain any common intention to commit the aforesaid act. To consider this aspect, it is necessary to analyse the evidence of the eye witnesses once again. 20. PW2 in her evidence has stated that first accused came from the southern portion of their house and accused 2 and 4 from the northern portion. 3[rd] accused asked A1 to beat him. A1 had come with a spade which was kept near their house. Knowing that there would be a confrontation and tussle, PW2 and PW3 Crl.Appeal No.1718/13 -:12:- interfered. At that time A2 and A4 caught hold of her neck and pushed her down. She fell down. At that time A2 and A4 got hold of the hands of her father and pulled it behind. A3 asked A1 to hit him. At that time, A1 inflicted a blow with the blunt edge of the spade on Narayanan's head. He fell down. At that time, they ran away leaving the spade behind. To a pointed question as to whether while running the accused had said anything, she deposed that “എടത ആശപതതയതൽ കകകണപപകകകൻ പറഞകകകണ ഓടത ” i.e., they ran away asking us to take him to hospital. 21. PW3 also had given evidence regarding the incident. It could therefore be seen that there was some dispute between Narayanan and A3's family members and there was an altercation between them just prior to the incident and one of them calling names. Immediately thereafter, A3 along with his sons and A4 came and A2 and A4 after pushing aside PW2, held Narayanan by his hands and when A3 asked A1 to hit him, A1 inflicted the blow. Thereafter, they ran away from the scene telling that the injured should be taken to hospital. From this incident, it is rather clear that they had no intention to commit murder. But the intention was to inflict a blow on Narayanan. But Crl.Appeal No.1718/13 -:13:- the weapon used by A1 was a spade and he had hit Narayanan on his head which became fatal. 22. As far as accused 2 and 4 are concerned, they have only held back Narayanan to enable A1 to hit him. They would not have entertained the intention to commit murder at all since while running, they asked Narayanan to be taken to hospital. Further, A2 and A4 had only held Narayanan by his hand to enable A1 to hit him and they would never have thought that the hitting would cause such a fatal injury. Probably their intention was only to cause hurt on Narayanan, which is punishable u/s 324 of the Indian Penal Code. Another circumstance which prompted us to come to the aforesaid conclusion is that none of the accused had carried any weapon and when the 3[rd] accused had asked the first accused to hit him, he had taken the weapon from the house of Narayanan himself. Therefore, at the time when they reached Narayanan's house, accused 2 to 4 could never have entertained an intention to commit murder. Apparently, they only wanted to inflict hurt on Narayanan for which they have held his hands behind him. Unfortunately, the hit was caused by the blunt edge of a spade and it became fatal. Crl.Appeal No.1718/13 -:14:- 23. Therefore, we are of the view that accused 2 and 4 never entertained a common intention to commit murder and their intention was only to cause hurt for which the punishment can only be under Section 324 read with Section 34 of I.P.C. The Court below have convicted them u/s 302 of I.P.C. proceeding on the basis that they entertained a common intention coming u/s 34 to commit murder. This finding, according to us, is not sustainable in the facts of the case and hence they are convicted only for offence u/s 324 read with section 34 of I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years. 24. As far as the first accused is concerned, the question is whether the offence is punishable u/s 302 I.P.C. or as contended by the learned counsel for appellant, under Part II of S.304. As already stated, first accused had inflicted a blow on the head of Narayanan with the blunt edge of a spade at the instance of the 3[rd] accused who asked him to hit him. In order to attract S.300, the death must have been caused by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or the person committing Crl.Appeal No.1718/13 ## -:15:- the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. S.300 had carved out certain exceptions of which ## 25. Exception No.4 reads thus:- _“Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner”_ . ## Explanation reads as follows:- _“It is immaterial in such cases which party offers provocation or commits the first assault”._ ## 26. The learned counsel relied upon the judgment in _**Hardev Bhanji Joshi v. State of Gujarat**_ (AIR 1993 SC 297). Paragraph 5 reads thus:- _“Even, according to P.W. 2, A-2 dealt only one blow. The nature of the injury shows that the sharp edge of the axe was not used. The whole thing happened in a sudden manner. Under these circumstances clause I of S. 300, IPC is not attracted. If A-2 had the intention to cause death, one would expect him to use the sharp edge of the axe. The very fact that he used the blunt side of the axe shows that he had no intention to cause the death. Further it is not a premeditated act. Now coming to clause III of S. 300, IPC, admittedly he caused only one injury with the blunt_ Crl.Appeal No.1718/13 ## -:16:- _side of the axe which unfortunately resulted in the fracture of skull bone. Further this happened during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Under similar circumstances the courts have held that the offence punishable would be one of culpable homicide as knowledge that he was likely to cause death by such an act can be attributed to the accused. Accordingly we set aside the conviction of the appellant under S. 302, IPC. and the sentence of imprisonment for life thereunder. Instead we convict him under S. 304, Part II and sentence him to five years R.I. He shall surrender and serve out the sentence. The appeal is partly allowed.”_ 27. He also placed reliance on the judgment in _**Ram**_ ## _**Asrey v. State of U.P**_ (1993 Supp.(4) SCC 218). Paragraphs 10 and 11 reads thus: _**“10.** The next question which has to be examined is as to whether so far the appellant is concerned who, according to the prosecution case itself, has not given any banka blow to the victim, but is said to have pressed down the deceased, before the other two accused persons Radhey Shyam and Munni Lal had given the blows, should have been held guilty for an offence under Section 302 read with Section 34 of the Penal Code. It was pointed out that the appellant was a school student and there was no reason on his part to share the common intention of committing the murder of the victim. In this connection, reference was made to the injuries found on the person of the victim during the post-mortem examination. It_ Crl.Appeal No.1718/13 ## -:17:- _was pointed out that the injuries were not consistent with the prosecution case that the other two accused persons caused those injuries with bankas. About injuries Nos. 2, 3, and 4 the doctor, who held the post-mortem examination, has clearly stated that they must have been caused by some blunt weapon. In respect of injury No. 4, he has said that it might have been caused by the blunt side of the banka. This itself shows that amongst the two participants in the occurrence, they had different intentions. One out of the two assailants i.e. Radhey Shyam and Munni Lal had used the back side of the banka. If one of the two assailants had used the back side of the banka, then from this conduct it can be reasonably inferred that such assailant had not the intention to cause the death of the victim, otherwise there was no reason to use the back side of the banka, instead of sharp side which in normal course could have caused the death of the victim. However, so far the present appeal is concerned, we are not concerned with either of the two other accused persons. But this circumstance can be taken into consideration for judging the role played by the appellant. According to us, by merely pressing down the victim before the other two accused persons assaulted him, it cannot be held that appellant had shared the common intention of causing the death of the victim. In the facts and circumstances of the case, of course, it has to be held that he shared only the common intention of culpable homicide not amounting to murder. He can be attributed with the intention that the injuries, which were being caused by the other two accused persons, were likely to cause the death of the victim._ _**11.** Accordingly, we set aside the conviction of the appellant under Section 302 read with Section 34, as well as his sentence to imprisonment for life. He is convicted under Section 304 Part_ Crl.Appeal No.1718/13 -:18:- _I, read with Section 34 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. The appeal is accordingly allowed in part to the extent indicated above.”_ ## and _**State of Punjab v. Tejinder Singh**_ (AIR 1995 SC 2466). Paragraph 8 reads thus:- _**“8** . In view of our above findings we have now to ascertain whether for heir such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34 I.P.C. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellants is one under Section 304 (Part 1). I.P.C. and not under Section 302 I.P.C.”_ 28. Coming again to the facts, there was an altercation between A4 and Narayanan immediately prior to the incident and they had a tussle initially. It is settled law that Exception 4 can be invoked if death is caused without premeditation in a sudden fight, without the offender's having taken undue advantage or acted in a cruel or unusual manner and the fight might have been Crl.Appeal No.1718/13 -:19:- with the person killed. This position of law is well settled by the Apex Court in _**Sridhar Bhuyan v. State of Orissa**_ [(2004) 11 SCC 395]. 29. In _**Richhpal Singh Meena v. Ghasi**_ [(2014) 8 SCC 918], the Supreme Court had laid down certain principles to understand whether a case falls u/s 300 or 304 of IPC. The question is, whether there is a homicide and if the answer is yes, is it a culpable homicide or not a culpable homicide. If it is culpable homicide, is the offence one of culpable homicide amounting to murder or is it a culpable homicide not amounting to murder. As far as the case on hand is concerned, it is rather clear from the evidence that there was no premeditation to commit murder and it had occurred in a sudden fight with Narayanan. The very fact that A3 had asked A1 to hit Narayanan by stating "അടതക�ടക", the intention was not to commit murder, but to hit Narayanan. Therefore, this is a clear case that the act committed was without premeditation and would only fall u/s 304 I.P.C. 30. In _**Jagriti Devi v. State of Himachal Pradesh**_ [(2009) 14 SCC 771], the Apex Court had occasion to consider as Crl.Appeal No.1718/13 -:20:- to what amounts to intention and knowledge as appearing u/s 304 I.P.C. It was held that the expression “intention” and “knowledge” postulate the existence of a positive mental attitude. It was also held that if there is intent and knowledge, then the same would be a case under first part of S.304 and if it is only a case of knowledge and not intention to cause murder by bodily injury, the same would come under second part of S.304. 31. It is apparent from the facts of the present case that the intention of the accused was only to cause bodily injury. But the weapon used by the first accused was a lethal weapon and he had hit him on his head, a very vital part of the body and that too with the blunt edge of a spade. In such an event, it could only be stated that he did not have the intention to cause death or such bodily injury as is likely to cause death. Since he is hitting on his head, he may have the knowledge that it is likely to cause death. That apart, while running away, they asked those present in the vicinity to take him to hospital which also proves the fact that they did not intend to cause death of Narayanan. 32. Taking into account all these facts, we are of the view that the conviction and sentence of the first accused u/s 302 of Crl.Appeal No.1718/13 -:21:- I.P.C. have to be set aside. The act had been committed without any premeditation and it would fall under Exception 4 of S.300. Since the act has not been committed with the intention of committing murder, he is liable to be punished only under Part II of S.304 I.P.C. The finding of guilt, conviction and sentence of the first accused u/s 302 I.P.C. stands set aside. But, he is found guilty and is convicted for the offence falling u/s 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years. In the result, this appeal is allowed as under:- (i) The conviction and sentence of the first accused u/s 302 I.P.C. r/w S.34 I.P.C. is set aside. He is convicted and sentenced to undergo imprisonment for a period of 7 years for the offence u/s 304 Part II I.P.C. (ii) The conviction and sentence of appellants 2 and 3/accused 2 and 4 u/s 302 r/w S.34 I.P.C. are set aside. They are convicted u/s 324 I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years. (iii) All other sentences of the accused 1, 2 and 4 under Crl.Appeal No.1718/13 -:22:- sections 447 and 341 r/w S.34 I.P.C. are hereby confirmed. (iv) If the accused have undergone the sentence imposed hereunder, they shall be released forthwith, if their presence is not required in any other case. Rp **Sd/A.M.SHAFFIQUE Judge Sd/P.SOMARAJAN Judge** //True Copy PS to Judge