State of Kerala v. Jayaprakash and Prakash

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MRS. JUSTICE K.HEMA** **TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929** **CRL.A.No. 540 of 2004** **-------------------------------** **SC.3/2001 OF ADDL.SESSIONS COURT, KOTTAYAM, CP.27/2000 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY** **....................** ## **APPELLANT/ COMPLAINANT:** **------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.** **BY PUBLIC PROSECUTOR SRI K.C. SANTHOSH KUMAR.** ## **RESPONDENT/ ACCUSED:** **--------------------------------------** **JAYAPRAKASH AND PRAKASH, S/O. NARAYANAN, KANNANKUNNEL HOUSE, MANJARAMATTOM BHAGOM, MATTAKKARA, AKALAKUNNAM.** **BY ADV. SRI.SURESH BABU THOMAS, ADV. SRI.P.RAVINDRA BABU.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. Koshy & K.Hema, JJ.** ## **-------------------------------------Crl. A. No. 540 of 2004** ## **--------------------------------------Dated this the 1st day of January, 2008** ## **Judgment** ## **Koshy,J.** This appeal is filed by the State against acquittal of the respondent, sole accused in Sessions Case No.3 of 2001 on the file of the Court of Sessions Division, Kottayam. He was charged for the offence punishable under section 302 of the Indian Penal Code alleging murdering his own brother. We are extracting the court charges: "That on 7.1.2000 at about 11 p.m. when the deceased Ravi was standing in the verandah of the house bearing No.2/274 of Akalakkunnam Panchayat in Akalakkunnam village, you on account of your previous enmity with your brother Ravi and knowing that he is a heart patient and your act will result in his death and with an intention to kill him, you had thrown a wooden log at Ravi which hit on the left chest and due to that he died on the same day and thereby you had committed the offence punishable under section 302 IPC and within my cognizance." 2. PW1, brother-in-law of deceased and accused, gave Ext.P1 first information statement. He was not a witness to the incident. On getting information, he went to the house and then 2 **Crl.A.No.540/2004** informed the matter to the police and Ext.P1 was recorded by PW22 Sub Inspector of Police. Based on the same, a case for 'unnatural death' was registered by the police. PW12 during the investigation suspected a case of murder and gave a report to PW13 who conducted subsequent investigation and PW13 filed Ext.P10 report to change the charge to section 302 IPC. PW1 was declared hostile. Anyway, he is not an eye witness. But, he stated to the police that when he came to the house of the deceased on getting information of the death of the deceased he came to understand from the mother of the deceased that the deceased fell down and sustained injuries on his chest. This is the first statement given by PW1 regarding the incident before the police and according to him this statement was given by the mother of the deceased to him. 3. Motive was sought to be proved by examining PWs 3 and 4. According to them, while they were playing cards along with other friends by name 'Lelam' from the courtyard of the toddy shop conducted by deceased Ravi which is situated in the family property of the accused and the deceased, the accused came there and asked them to stop the game and took away the playing cards and the paper and threw it away. On seeing this, the deceased Ravi came out of the shop and told the accused not to interfere in the 3 **Crl.A.No.540/2004** affairs of the shop as he was controlling the shop and there was some altercation between them and in that the deceased had beaten the accused and asked him to go to the house. Having humiliated, he went from the place. According to PW2, wife of the deceased, he came to the house in a scooter and got into the house shouting അവന�ല�� ഉണ�ക� എന�ട�� എനന അട�ക�ന�. He then went to the courtyard and took MO1 wooden log which was there and came to the veranda and, at that time, their mother caught hold of him and removed the wooden log from him and threw it to the veranda which PW2 had taken and thrown away the same to the courtyard. At that time, according to PW2, her husband came after closing the shop and he went inside the room and kept the money bag there and came out from there. Afraid of something going to happen between the brothers, PW2 caught hold of the hands of her husband and he scolded her and removed her grips and went to the veranda and beaten the accused on his face with his hands stating that '��നന ഇത��നലട� വളര��യത�. ' At that time only, according to PW2, he wriggled out of the clutches of his mother and both of them fell down and then he went to the courtyard and took MO1 and threw it at the deceased which, according to PW2, hit on the chest and caused injury No.1. PW2 further stated that after getting the hit the 4 **Crl.A.No.540/2004** deceased tried to fall down and she caught hold of him and made him to lie on her laps and she along with mother made hue and cry. Hearing the cry, neighbours gathered and he was taken to the hospital where he was declared dead. PWs 6 and 7 were brothers of PW2. They were examined to prove that all the members of the deceased including the accused were known about the heart ailment of the deceased. But, when they were questioned at the time of inquest they did not state that the deceased was a heart patient. Before the court, they have stated that they have only hearsay knowledge about the same as stated by PW2, their sister. So, they have no direct knowledge about the allegation that the deceased was having heart ailment earlier. Even PW2 also was not sure about the nature of disease that her husband was suffering from. Even according to her, one year prior to the incident, he had some chest pain and he went to the doctor and she did not accompany him and she was waiting in the vehicle outside. According to her, the deceased came and informed the family members including the accused that he was having some heart problem. She was not sure as to what is the nature of medicine that was taken by the deceased for his ailment. She had also stated that he did not continue the medicine thereafter. 5 **Crl.A.No.540/2004** 4. Now, we will come to medical evidence. Dr.V.T.Augusthy, Assistant Professor of Forensic Medicine, Medical College, Kottayam conducted autopsy. PW9 Professor of Forensic Medicine, Medical College, Kottayam who identified the signature of the former proved Ext.P5 postmortem certificate. Ante-mortem injuries noted are as follows: "1. Contused abrasion 19 x 1 c.m. horizontally placed on the left side of front of chest, the inner end being 16 c.m. below the inner end of left collar bone and 3 c.m. to the left of mid line. The chest wall underneath contused over an area 7.5 x 3.5 c.m. Contusion 4.5 x 3.5 x 0.5 c.m. on the outer aspect of lower lobe of left lung. 2. 1.5 x 1 c.m. on the inner aspect of left arm 4 c.m. below front fold of armpit. 3. Multiple small abrasions over an area 3.5 x 1.5 c.m. on the outer aspect of right ankle. 4. Abrasion 3.5 x 0.1 c.m. vertically placed on the back of right forearm 10 c.m. below wrist." Chemical analysis report showed that blood of the deceased contained 104 m. gms. of Ethyl Alcohol per 100 ml. of blood. After referring to Chemical analysis report Ext.P6 was issued stating that death was due to occlusive coronary artery disease. Ext.P6 was issued by PW9. He deposed as follows: 6 **Crl.A.No.540/2004** "I have opined that the deceased died due to occlusive coronary artery disease. The blood contained 104 m. gms of Ethyl Alcohol per 100 ml. of blood. Injury No.1 is not sufficient to cause death but it is likely to cause death. The chest wall was seen contused and lower lobe of left lung was also seen contused at the time of postmortem examination. Injury Nos.1 and 2 mentioned in Ext.P5 postmortem certificate can be caused by throwing weapon like MO1 at the person and if it hit against that part of the body where the injuries are noted. Injury Nos. 3 and 4 could be caused by that part of the body coming into contact with any rough surface or hard object." In cross-examination, he deposed as follows: "The postmortem certificate findings shows that the deceased was suffering from a serious coronary artery disease which is not fresh. If the patient with the condition mentioned in the postmortem for his heart attack was not taking medicine prescribed and follow the diet prescribed, he is likely to have the risk of causing heart attack which resulted in his death. In a case like this work stress or emotional fluctuation is likely to accelerate the heart disease. I cannot give any definite opinion as to whether the deceased had suffered heart attack prior to getting injury or after sustaining the 7 **Crl.A.No.540/2004** injury. But, I can only say that injury No.1 can accelerate the possibility of heart attack in such persons. In order to sustain injury No.1 with MO1, the MO1 must have come into contact with the body horizontally with the flat portion of MO1 coming into contact with that part of the body to inflict injury No.1. Consumption of alcohol also in such persons accelerate heart disease. If the deceased fell down in a scuffle on the parapet wall and if that part of the body coming into contact with horizontal edges of the parapet wall injury No.1 could be possible." 5. Under 313 statement, accused denied the entire allegations. According to the counsel for the accused, the death was due to natural cause (chest disease) and injuries on him were the result of fall due to the disease. Even if evidence of PW2 is believed, at the maximum, it will show that there was a scuffle between the accused and deceased was the aggressor, but, he fell down in the parapet wall and being a heart patient, he died due to coronary disease. On appreciation of evidence adduced in the case, trial court held as follows: "27. In this case PW2 had omitted to mention before the police that the accused had taken MO1 with him when he suspected that something was going to happen to the deceased on account of his act. She had also not stated to the police on the first occasion that the 8 **Crl.A.No.540/2004** deceased was suffering from heart ailment and this was known to the family members including the accused. She had also not stated to the police that the deceased had beaten the accused on his face very slowly but except stated that he had slapped on the face of the accused. So the fact that she is trying to improve her case stage by stage and also omitted to mention the material things before the police which she was stating before the Court for the first time coupled with the fact that she had some enmity with the accused after the incident and her attempt to justify the act of her husband in beating the accused and to conceal the fact that her husband was the aggressor and it was he who provoked the accused not only from his shop but also from the house by beating him, will go to show that it is not safe for this Court to rely on the evidence of this witness alone to base conviction of the accused for the offence alleged and also regarding the manner in which the incident had happened." After considering the medical evidence, it was also held at paragraphs 28 and 29 as follows: "28. Further, the medical evidence will go to show that unless MO1 wooden log strike at the deceased horizontally on the chest with the flat regular portion touching that part, injury No.1 could not be possible. According to PW2, MO1 did not come rotating and hit against the deceased. But, according to her it came slantingly and hit against the deceased. If that be the case, there is no possibility of causing injury No.1 as stated in the postmortem certificate on account of the hit of MO1 on the chest of the deceased. 9 **Crl.A.No.540/2004** 29. Further, the doctor also deposed that consumption of alcohol, getting stress due to some tension and not taking medicine and following diet, in such cases will accelerate heart attack in persons like the deceased. He had also stated that he cannot say whether the deceased sustained heart attack either before hitting of MO1 on his chest or prior to that. The doctor also deposed that in a scuffle if the deceased fell on a parapet wall and if that part of the body where injury No.1 is seen came into contact with the edge of the parapet wall horizontally then injury Nos. 1 and 4 could be possible. According to PW2 she was holding the deceased at the time when the accused had thrown MO1 wooden log at him and while he was trying to wriggle out of that, it hit against his chest directly. If that be the case, there is no possibility of any injury being caused to his both hands as noted in Ext.P5 postmortem certificate. But, at the same time, these injuries could be possible if he had fallen down on the parapet wall which is situated in the veranda of the house as suggested by the defence. ...... " Court also noted that mother of the deceased and accused was present in the house. She ought to have been cross-examined in this case to find out the truth. Finally, trial court held as follows: "Considering the medical evidence and also other evidence available it is impossible for the accused to inflict the injuries seen on the body of the deceased which according to the prosecution has accelerated the death of the deceased using MO1 wooden log. Further, the medical evidence will go to show that the possibility of the deceased falling on the parapet wall and sustaining the injury in a scuffle also cannot be ruled out. The possibility of the 10 **Crl.A.No.540/2004** accused and the deceased engaged in a scuffle after the deceased had beaten the accused when he was caught hold of by the mother and during that scuffle the deceased accidentally falling on the parapet wall and sustaining the injury which accelerated the death of the deceased also cannot be ruled out in the circumstance of the case though this possibility was denied by PW2, the wife of the deceased whom I have already found that it is not safe to rely on her evidence alone to convict the accused. The best person to speak about the incident, mother of the deceased and the accused was not even cited by the prosecution as a witness. So under the circumstance the deceased sustaining the injury as suggested by the defence also cannot be ruled out. If there are two versions regarding the manner in which the injury could have been sustained by the deceased which accelerated his death, then they version in favour of the accused must be taken by the Court unless the evidence adduced on the side of the prosecution fully rules out that possibility beyond reasonable doubt. But in this case no such positive evidence was adduced on the side of the prosecution to rule out that possibility. So under the circumstance it is not safe to rely on the evidence of PW2 alone to convict the accused for the offence of culpable homicide not amounting to murder or any other offence punishable under the Indian Penal Code without corroboration from any independent witness." Evidence of PW1 and first information statement given by him and medical evidence probabilise the defence version. Thus trial court came to the conclusion that prosecution was not able to prove the 11 **Crl.A.No.540/2004** case against the accused beyond reasonable doubt. We agree with the above view. In any event, it cannot be stated that the view of the trial court is not a possible view. Findings of the trial court are not perverse or illegal. In this connection, we refer to the settled principle reiterated by the Apex Court in Samghaji Hariba Patil v. State of Karnataka (AIR 2007 SC 28) regarding power of the appellate court in interfering with the order of acquittal. No valid grounds are stated to interfere with the order of acquittal. Hence, we dismiss the appeal. **J.B.Koshy Judge** **K. Hema Judge** vaa **Crl.A.No.540/2004** 12 **J.B. KOSHY AND K.HEMA,JJ.** ------------------------------------Crl. A. No. 540 of 2004 ------------------------------------- **Judgment** Dated:1st January, 2008