State of Kerala v Kunjootti @ Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940 **CRL.A.No. 595 of 2011** AGAINST THE JUDGMENT DATED 31.10.2007 IN SC.NO.729/2004 OF THE FIRST ADDITIONAL SESSIONS JUDGE, THODUPUZHA ## APPELLANT/COMPLAINANT: STATE OF KERALA BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR ## RESPONDENT/ACCUSED: KUNJOOTTY @ JOSEPH, S/O.OUSEPH, PULIYANIKKATTU HOUSE, KALLIPPARA KARA,, VATHIKUDY VILLAGE. BY ADV. SRI.ALBERT JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.Shaffique & P. Somarajan, JJ.** **---------------------------------------------------Crl. Appeal No.595 of 2011 ---------------------------------------------------Dated this the 19[th] day of July, 2018** ## **JUDGMENT** ## **Somarajan, J.** Aggrieved by the judgment and order of acquittal of accused dated 31.10.2007, in S.C.No.729 of 2004 of the First Additional Sessions Court, Thodupuzha, the State Government came up with this appeal. 2. The prosecution case is that on 27.4.2008 due to previous animosity towards the children of the victim herein the accused invited him to his house at 4.00 p.m. and shared liquor and food with him. By 8.00 p.m., he stabbed on neck, right shoulder, below the shoulder, right upper arm and right wrist of the victim by using a knife like sword by which he fell down. Thereon cut injuries were inflicted on his neck causing death and pulled the dead body to the courtyard of his house and covered the same with plastic cover and waste materials. ## **Crl. Appeal No.595 of 2011** :: 2 :: 3. The trial court found that the prosecution had miserably failed to prove the guilt of accused and that the accused was succeeded in establishing right of private defence and consequently acquitted him under Section 255 Cr.P.C. Aggrieved by the said order of acquittal the State Government came up with this appeal. 4. The oral testimony of PW2 - the nephew of accused, PW1 - the son of deceased, PW3, PW4, PW5, PW11 - neighbours of the deceased, PW9 wife of the accused and PW10 niece of PW9 were relied on by the prosecution besides the oral testimony of PW12 and PW17, to prove the guilt of accused. PW2 is a child witness who was present in the house of accused wherein the alleged incident was happened. PW9 is the wife of accused. Though she turned hostile to the prosecution, she had admitted that the alleged incident happened within her bedroom and it was her husband, the accused, who inflicted injuries on the victim, by which he fell down. It was by 8.00 p.m. the alleged incident was happened ## **Crl. Appeal No.595 of 2011** :: 3 :: but she turned hostile to the prosecution regarding the genesis of the alleged incident. 5. The oral testimony of two eye witnesses, PW2, the nephew of accused, and PW9 his wife (though she turned hostile to the prosecution regarding the genesis of the alleged incident to a certain extent) would amply show the complicity of the accused in the alleged crime. According to PW9, it is by 4.00 p.m., both the accused and the deceased came to her house and started consuming alcohol. As usual, after a short while they started abusing each other. Though she intervened and demanded the victim to go back to his house by 6 - 6.30 p.m., he remained there till 8 - 8.30 p.m. and continued sharing and consumption of alcohol. By that time, she went to her bedroom. The victim entered into her bedroom stealthily and attempted to commit rape on her by removing her dothi. It is at that time the accused entered into the bedroom and found the victim. There was some verbal altercation and the accused beat on him. Then inflicted injury with a knife like sword. ## **Crl. Appeal No.595 of 2011** :: 4 :: 6. PW2 a minor witness who was present in the house had also seen all these incidents and deposed in tune with what is deposed by PW9. Their ocular version stood further corroborated by the oral evidence tendered by PW1 son of the deceased who had seen the dead body of the deceased lying on the courtyard of accused covered by plastic cover and waste materials. The oral evidence tendered by PW3 the immediate neighbour to the accused would also show that she had heard hue and cry of PW2 from the house of accused. She had also heard some altercation from the accused towards PW2 asking him to stop his cry and not to attract the attention of others. PW4 another neighbour also supported the version of PW3 that they heard some altercation from the house of accused. He had also deposed that on that day by 3.00 p.m. he had seen the victim going to the house of accused. The body of the deceased was also found in the courtyard of the accused covered with some plastic cover and waste materials. ## **Crl. Appeal No.595 of 2011** :: 5 :: 7. PW10 is the niece of PW9. She had given support to the version given by PW9 that just after the incident she along with PW2 went to the house of PW10 and stayed back there for some time. PW10 deposed that it is by 9.00 p.m, PW9 and PW2 came to her house and stayed back there stating that her husband picked quarrel with the victim in her house. 8. The medical evidence adduced would also support the main substratum of the prosecution case. The injuries noted by the Doctor who conducted postmortem examination on the body of the deceased are as follows: “Injuries (Antemortem): 1. Incised gaping wound with contused margins 30x4 cm obliquely placed across the front of neck above the level of thyroid. The wound passes through laryngeal box, muscles and blood vessels on the front and sides of neck and terminated on the front of cervical vertebra cutting it a depth of 1.5 cm. 2. Two incised gaping wounds with contused margins muscle deep parallely placed 1cm apart on the right side of neck 1cm below right ear over an area 11x3 cm size of wounds varied from 8x1.5 cm to 11x1x2.5 cm. 3. Three muscle deep incised wounds with contused ## **Crl. Appeal No.595 of 2011** :: 6 :: margins parallely placed 1 cm and 0.5 cm apart over an area 16x8 cm on the left side of back of neck. Size of the wounds varied from 4x2x2 cm to 10x2x3 cm. 4. Three incised muscle deep wounds with contused and gaping margins over an area 16x7 cm on the top and back of right shoulder placed in different directions. Size of wounds varied from 4x1x1cm to 8x1.5x2 cm. 5. Linear abrasion 7cm oblique on the right side of back of chest 3 cm outer to midline and 17 cm below top of shoulder. 6. Incised muscle deep wound with contused and gaping margins 9x4x2 cm horizontally placed on the upper part of outer side of right upper arm 7 cm below top of shoulder. 7. Incised wound 5x1.5x1 cm on the back of right writs, cutting the bone underneath superficially. 8. Abrasions over an area 11x3 cm on the front of right chest 7 cm below collar bone. 9. Abrasion 9x6 cm on the middle of front of right thigh. 10. Linear abrasions 24x14 cm on the left side of front of abdomen. 11. Abrasions 8x4 cm on the left side of the chest 9 cm below the left axilla.” The cause of death stated to be due to chop injuries sustained on the neck (ante-mortem injury Nos.1 and 2). ## **Crl. Appeal No.595 of 2011** :: 7 :: 9. The star witness examined by the prosecution is PW2 a child witness who was aged 7 at the time of alleged incident, whose presence in the house was also deposed by PW3 and PW10. He is the nephew of accused. He had given a narrative statement of what he had seen on the alleged day. The other occurrence witness, PW9, though turned hostile to the prosecution, had admitted that the victim stealthily entered into her bedroom and removed her dothi and attempted to commit rape on her by 8-8.30 p.m. Thereon her husband came to the room and beat on him. Then inflicted cut injuries by using a sword like knife. On receiving the injuries he fell down. Thereon, inflicted a cut injury on his neck. PW9 though subsequently turned hostile to the prosecution had given sufficient corroboration to the oral testimony of PW2. Nothing was brought out to shake his credibility. The medical evidence also supports the commission of offence as alleged by PW2. 10. MO9 knife used for the commission of offence was ## **Crl. Appeal No.595 of 2011** :: 8 :: recovered based on the disclosure statement exhibited as P12(a) while he was under custody and the recovery was witnessed by PW12. Nothing was brought out to discredit his evidence. But it was found to be stained with blood insufficient for determining its origin or group. 11. The motive alleged for the crime was also brought under challenge that the enmity towards the children of the victim, if proved, may not be sufficient for the commission of offence of homicide. The motive behind the commission of offence sometime may not be in proportionate with the offence alleged. When there is eye witness to the occurrence nonestablishment of a proportionate motive for the crime is not fatal to the prosecution. Further, it has come out in evidence that the offence was committed after having exchange of abusive language and sharing of liquor and the victim stealthily entered into the bedroom of PW9, the wife of accused. The victim came to the house of accused at his instance on the basis of request made by the accused and they had sharing of ## **Crl. Appeal No.595 of 2011** :: 9 :: liquor and food which was started by 4.00 p.m. and continued till 8-8.30 p.m. Even according to PW9, the wife of accused, it was their usual practice to consume liquor and share food in the house of accused. It is the victim alone who entered into the bedroom of PW9 by 8-8.30 p.m. Till that time, he was with the accused in the varandah of the house and shared food and liquor. The fact that the victim alone entered into the room would prima facie show that the accused was in a drunken stage not capable of noticing the act of victim or he was pretending himself as he is in a drunken stage so as to watch what is going on. The entire sequence of the incident would create considerable doubt as to existence of a pre-planned plot by the accused for the commission of offence doubting the chastity of his wife and her illicit relationship with the victim. 12. Then the question comes whether the homicidal death would satisfy the ingredients which constitute any of the clauses to Section 300 IPC. The number of injuries and violent attack especially the two injuries inflicted on the neck of the ## **Crl. Appeal No.595 of 2011** :: 10 :: victim would sufficiently bring the matter within the third limb of Section 300 IPC. No plea of private defence or benefit of any of the Exceptions to Section 300 IPC was either raised or advanced at the time of trial or during the course of examination under Section 313 Cr.P.C. But it is settled that a specific plea is not at all necessary. Even in the absence of such a pleading it is well within the duty of the Court to consider any of the exceptions available under Section 300 IPC (see **Babulal Bhagwan Khandare and Another v. State of Maharashtra [(2005) 10 SCC 404]** ). The initial burden is always on the prosecution to establish the non application of any of the exceptions while fastening liability under Section 300 IPC. The burden lies on the accused to establish the benefit of any of the exceptions to Section 300 IPC would arise only when the initial liability on the prosecution is discharged. 13. Right of private defence subject to the restriction contained in Section 97 of the Indian Penal Code covers firstly “his own body, and body of any other person, against any ## **Crl. Appeal No.595 of 2011** :: 11 :: offence affecting the human body”. Secondly, “the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass”. Under what circumstance the right of private defence to the extent of causing death can be invoked is dealt with under Section 100 IPC postulating seven conditions/ situations. What is embodied under Section 300 IPC is the logical extension of the doctrine of necessity. The doctrine of necessity implies that an act which would otherwise be a crime may in some cases be excused if the defendant can show that (I) it was done only in order to avoid consequences which could not otherwise be avoided and which, if then had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; (ii) that no more was done than was reasonably necessary for that purpose, and (iii) that evil inflicted by it was not disproportionate to the evil avoided. The facts involved in the ## **Crl. Appeal No.595 of 2011** :: 12 :: instant case would not satisfy any of the conditions enumerated under Section 100 IPC and as such there cannot be an application of extended and aggravated form of private defence by causing death. Admittedly, the facts involved will not satisfy the matters which would come under the purview of _secondly_ to Section 97 IPC as there is no involvement of theft, robbery, mischief or criminal trespass or attempt to commit theft, robbery, mischief or criminal trespass involved in the case. Then the question whether it would come under the purview of situations enumerated as first to Section 97 IPC, for defending his own body and body of any other person against any offence affecting the human body. The word 'offence affecting the human body' has to be understood in relation to commission of an offence causing injury to human body. An attempt to commit rape has to be understood as an act without the consent of the victim. The genesis of the incident as spoken by PW9 cannot be accepted in view of the contradictions marked as P6 to P7, which are material and the omission to state about the attempt on her by the victim to ## **Crl. Appeal No.595 of 2011** :: 13 :: commit rape while she was sleeping in her room at about 8 and 8.30 p.m. is so fatal. Admittedly, the attempt to commit rape on her was not disclosed before the police. But the oral evidence tendered by PW2 would sufficiently show that the alleged incident was happened within the bedroom of PW9. This has to be analyzed on the background of suppression made by PW9 regarding the attempt to commit rape on her that too during night time while her husband was in a drunken stage. It is the victim who entered into the bedroom by taking advantage of drunken stage of the accused. It is not clear whether there was actually an attempt to commit rape or whether it was rather consented by PW9. Needless to say that if it was actually consented by PW9 the act of accused inflicting injury would fall outside the purview of private defence. Certain injuries received by the accused is on the back of his body. Even according to PW9, the accused after entering into the room beat on the victim and inflicted several injuries by using a sword like knife and after receiving the injuries the deceased fell down. It is thereafter he had inflicted cut injuries on his ## **Crl. Appeal No.595 of 2011** :: 14 :: neck. The injuries which were received on his back (injury Nos.3 to 5), even according to the Doctor, are possible in an attack from the back side. Possibility of having those injuries on his back of body when he was in a compromising position with PW9 cannot be ruled out as there is no other possibility of having those injuries on the back side of the victim. If they were in a compromising position when the accused entered into the bedroom then also it cannot be brought under the purview of private defence unless it satisfies an attempt on PW9 to commit rape by the victim. Then the question comes whether it would fall under the fourth exception to Section 300 IPC and at the most the act of accused can be termed as an act committed in a heat of passion without pre-meditation but it will not satisfy the crucial ingredient that the offender had not taken undue advantage or acted in a cruel or unusual manner. Cut injuries on the neck were inflicted only after the victim fell down on the ground after receiving the other injuries on his back. Hence, it will not satisfy the requirement under Exception 4 to Section 300 IPC. Hence the finding of learned ## **Crl. Appeal No.595 of 2011** :: 15 :: Sessions Judge that the accused is not guilty for the offence punishable under Section 302 IPC and the order of acquittal thereof is liable to be set aside. We do so. 14. There is no sufficient evidence to show the ingredient which constitute offence under S.201 IPC and hence the accused is entitled to an order of acquittal for the offence alleged under Section 201 IPC and to that extent there is no reason for interference to the finding of the lower court. In the result, the appeal is allowed. The order of the lower court acquitting the accused for the offence under Section 302 IPC is hereby set aside but the order of acquittal for the offence under Section 201 IPC is hereby confirmed. The accused is found guilty of offence punishable under S.302 IPC and he is convicted thereunder. Accused shall appear before the lower court on 31.7.2018 for hearing on the question of sentence to be imposed for the offence under S.302 IPC. In the event of non-appearance of the accused, the lower court ## **Crl. Appeal No.595 of 2011** :: 16 :: shall procure his presence in accordance with law for hearing on the question of sentence and to award proper sentence. **sd/A.M. Shaffique Judge** **sd/-** **P. Somarajan Judge** ahz/