Sundaran alias Parukkaran Sundaran alias Krishnadas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940** ## **CRL.A.No. 328 of 2004** **AGAINST THE ORDER/JUDGMENT IN SC 184/2000 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI DATED 23-02-2004** ## **APPELLANT/ACCUSED:** **SUNDARAN ALIAS PARUKKARAN SUNDARAN ALIAS KRISHNADAS, S/O. VELAYUDHAN,, VELLARAMTHODY VEEDU, THIRUVALI.** **BY ADVS. SRI.GEORGIE JOHNY SRI.GILBERT GEORGE CORREYA SRI.M.P.PRABHANANDAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER (PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-2-** ## **CRL.A.No. 328 of 2004** **J U D G M E N T** **The appellant herein challenges the conviction and sentence against him under Section 304 of the Indian Penal Code in S.C. No. 184 of 2000 of the Court of Session, Manjeri. He faced prosecution before the learned Additional Sessions Judge (Adhoc-I), Manjeri, under Sections 341, 323 and 302 IPC on the allegation that at about 11.00 a.m. on 28.09.1997, at the premises of a Recreation Club at Thirvalli, the accused assaulted one Abdulla for the reason that he came at the Club in a drunken condition, and when Abdulla retorted and resisted, the accused again assaulted him, kicked severely on his head and face causing severe injuries, and due to those injuries, Abdulla died on the next day. Abdulla was seen lying dead at a nursery at about 10.00 a.m., and on the report regarding death, a crime** **CRL.A.No. 328 of 2004** **-3-** **for unnatural death was registered by the police as Crime No. 90 of 1997. On 05.10.1997, one Muraleedharan, who claimed to have witnessed the incident, gave an Information Statement to the police, and on the said statement, another crime was registered as Crime No. 93 of 1997 under Sections 341 and 323 IPC. During investigation in this crime, the police found a case of murder, that Abdulla was actually murdered by the accused, or that Abduall died due to the severe injuries inflicted on his body by the accused on 28.09.1997. Accordingly, after investigation, the police submitted final report against the accused under Sections 341, 323 and 302 IPC.** **2. After compliance of the procedural formalities, the case was committed to the Court of Session from where it was made over to the learned Additional Sessions Judge, (Adhoc-I),** **CRL.A.No. 328 of 2004** **-4-** **Manjeri, for trial.** **3. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Sections 341, 323 and 302 IPC.** **4. The prosecution examined 18 witnesses, and proved Exts.P1 to P19 documents in the trial court. The MO1 and MO2 material objects were also identified during trial. No weapon was admittedly used by the accused in the alleged incident.** **5. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence of total denial. He did not adduce any oral evidence in defence, but Exts.D1 to D3 were marked. These are the contradictions in the statements given by the important witnesses, including PW1, who gave** **CRL.A.No. 328 of 2004** **-5-** ## **the First Information Statement.** **6. On an appreciation of the evidence, the trial court found that there is nothing for a conviction under Section 302 IPC. Accordingly, the accused was not found guilty under the second part of Section 302 IPC, but he was found guilty under Section 304 IPC. Under Sections 341 and 323 IPC, the trial court did not come to any finding. On conviction, the accused was sentenced to undergo rigorous imprisonment for 10 years, and to pay a fine of Rs.2,000/-. Aggrieved by the judgment of conviction dated 23.02.2004, the accused has come up in appeal.** **7. On hearing both sides, and on a perusal of the materials, I find that there is no clear and satisfactory evidence to sustain the conviction under Section 304 IPC, but there is clear evidence to prove that the accused had in** ## **CRL.A.No. 328 of 2004** **-6-** **fact assaulted the deceased at about 11.00 a.m. on 28.09.1997 at the premises of a Recreation Club at Thiruvalli. Of course, on the next day at about 10.00 a.m., the deceased was seen lying dead at a nursery. The crucial question is whether there is anything to connect the act of assault made by the accused on the previous day with the death of Abdulla. If there is no satisfactory evidence to connect the two, or if there is no evidence to find any nexus between the alleged assault made by the accused and the death of Abdulla on the next day, the conviction against him under Section 304 IPC cannot be sustained. If what is proved is only an instance of simple assault on the previous day, the conviction possible is only under Section 323 IPC.** ## **CRL.A.No. 328 of 2004** **-7-** **8. Of the so many witnesses examined in the trial court, the material witnesses are PW1 to PW6. Of them, PW1 is the first informant on whose statement the Ext.P13 FIR was registered on 05.10.1997. PW4 is the son of the deceased. His evidence is only regarding the first part of the incident wherein, he saw only a push and pull between his father and the accused. When the people gathered there told him not to interfere, or that his father and the accused would themselves resolve the dispute, he left the place. On the next day, he found the dead body of his father lying at a nursery. Thus, the son of the deceased has not stated anything in evidence about infliction of any injury by the accused. His evidence is only regarding the first part of the incident wherein, he saw some exchange of words and push and pull between his** **CRL.A.No. 328 of 2004** **-8-** ## **father and the accused.** **9. PW3 is the only important witness in this case, who claimed to have witnessed the actual incident, except the initial part of it. He happened to see the incident when he came along the way with his wife, and he does not know how actually the incident started. When the evidence of PW4 is about the first part of the incident, the evidence of PW3 is about the second part in which actual assault was made by the accused.** **10. PW1, who gave the First Information Statement regarding the entire incident, turned hostile. He was thoroughly cross examined by the Public Prosecutor, and some contradictions in his statements given under Section 161 Cr.P.C. were also marked as Ext.D1 series. PW18 is the Circle Inspector who investigated the case. The** ## **CRL.A.No. 328 of 2004** **-9-** **different contradictions marked through PW1, except the first part of it, were not actually proved through the investigating officer. The prosecution did not care to prove all these contradictions properly. Despite thorough cross examination by the learned Public Prosecutor, nothing could be brought out in the cross examination of PW1 to incriminate the accused in any manner. Of course, he gave the first information statement only on 05.10.1997. The incident happened on 28.09.1997. He has no explanation why he waited for days to make a complaint. His allegation in the Ext.P1 complaint is that he and the deceased were assaulted by the accused. It does not contain any allegation of culpable homicide. He did not think of making any complaint on the date of incident itself. Even when the body of Abdulla** ## **CRL.A.No. 328 of 2004** **-10-** **was found on the next day at a nursery, he did not think of making any complaint. In the complaint, he stated that he had also sustained some injuries in the incident. It is not known why nobody thought of taking Abdulla to the hospital immediately after the incident. Had he been taken to the hospital, there would have been some materials by way of medical evidence as to how exactly Abdulla sustained injuries on his body, or when he sustained injuries, or how such injuries could be inflicted.** **11. PW16 is the doctor who conducted post-mortem examination on the body of the deceased. He has proved Exts.P15 and P16 postmortem certificates. Ext.P15 post-mortem certificate contains the ante-mortem injuries seen on the body by PW16, and opinion regarding the cause of death was reserved by him. In the** ## **CRL.A.No. 328 of 2004** **-11-** **Ext.P16 post-mortem certificate issued as a continuation of the Ext.P15 certificate, the doctor has stated the cause of death, as the head injury sustained by the deceased. The postmortem certificate shows that the doctor had seen a contusion of scalp, over the right frontal area, 4x4 cms, and a corresponding sub archanoid hemorrhage was also seen on the right cerebral hemisphere. The medical evidence shows that this head injury or the sub archanoid hemorrhage on the right cerebral hemisphere caused the death of Abdulla. The crucial question is who actually caused this or inflicted this injury. If there is anything to show that the injury was inflicted by the accused, no doubt, he can be found guilty. On the other hand, if there is no evidence to show that this injury was actually inflicted by the accused, he cannot be found guilty under** ## **CRL.A.No. 328 of 2004** **-12-** **Section 304 IPC.** **12. PW3 has no case that he had seen the accused fisting on the head of Abdulla, or inflicting any injury on his head. What actually led to death is the internal head injury, or the sub archanoid hemorrhage on the right cerebaral hemisphere. This is the corresponding internal injury of the contusion over the scalp, above the right frontal area. The evidence of PW3 does not show, or he has no case, that the accused had inflicted any injury on the forehead, or on any other part of the head of Abdulla. The injury No.1 described in the post-mortem certificate is an external injury, and the injury no. 2 is its the corresponding internal injury. The death of Abdulla can be connected to the injuries noted in the post-mortem certificate only if there is ocular evidence to show that this particular** ## **CRL.A.No. 328 of 2004** **-13-** **injury that probably caused death was actually inflicted by the accused.** **13. The evidence given by PW4, the son of the deceased is that on the next day, at about 10.00 a.m. he found the body of his father at a nursery, lying in blood. Nobody has got a case that the deceased had sustained any profusely bleeding injury in the alleged incident of simple assault made by the accused. Even according to PW3, the assault made by the accused was on the face of the deceased, and he had noticed some discolouration on the face. He has no case that he had seen the accused inflicting any simple or severe injury on the head of the deceased, or that he had seen bleeding from the nose. If so, it is not known how bleeding occurred, or how head injury was sustained by the deceased after the incident witnessed by PW3.** ## **CRL.A.No. 328 of 2004** **-14-** **14. It is pertinent to note that after the assault made by the accused, the deceased did not think of going to any hospital, and nobody gathered there also did not think of taking him to hospital. Evidence shows that after the incident, Abdulla had walked for a distance. Probably, the people gathered there did not find anything serious, and that is why, probably nobody thought of taking him to the hospital. If Abdulla had not sustained any injury on the head in the assault made by the accused on 28.09.1997, it requires explanation and clear evidence as to how or when he sustained the head injury. What actually led to death is the head injury sustained by the deceased. This is the medical evidence given by PW16. Even the evidence of PW16 is that in the normal circumstances, the head injury sustained by the deceased would cause** ## **CRL.A.No. 328 of 2004** **-15-** **death only if proper and immediate medical attention is not given. The doctor even stated during cross examination that even high blood pressure may cause the hemorrhage noticed by him. These are all different possibilities. Evidence does not clearly and satisfactorily show how exactly Abdualla sustained head injury, or who actually inflicted this injury. When there is no clear and satisfactory ocular evidence to show that the accused had inflicted any injury on the head of the deceased in the alleged incident of assault, or to show that Abdulla had sustained any external or internal head injury at the hands of the accused in the alleged assault, the court cannot find any nexus or connection between the act of assault made by the accused on 28.09.1997, and the fact of death on the next day. It is not known when exactly Abdulla died; whether it was** ## **CRL.A.No. 328 of 2004** **-16-** **on 28.09.1997, or on 29.09.1997. The body was found at a nursery on 29.09.1997, and according to PW4, he saw his father lying in blood. There is absolutely nothing to show that the accused had inflicted any such injury that may cause profuse bleeding in the incident of assault on 28.09.1997. The possibility is that the head injury that caused bleeding might have been sustained some how after the alleged incident that happened on 28.09.1997 at the premises of the Recreation Club. The broader possibilities are either somebody else did it, or that Abdualla sustained injury in a fall. It has come out in evidence that Abdulla was under the influence of alcohol at the time of the incident. There is no reason why Abdulla did not think of going to the hospital if he had sustained any severe injury at the hands of the accused. To convict the accused** ## **CRL.A.No. 328 of 2004** **-17-** **under Section 304 IPC in the present circumstances, there must be clear and convincing evidence proving that the fatal injury was in fact inflicted by him. When possibilities otherwise are there, that the deceased might have sustained such an injury after the incident, or in between the assault made by the accused, and the time at which the body was seen at the nursery, the benefit of this doubt must go to the accused.** **15. As discussed above, I find that there is clear evidence given by PW3 and PW4 that the accused had assaulted the deceased at the premises of the Recreation Club, and he had inflicted some simple injuries on his body. To connect the accused with the head injury that caused death, there is no satisfactory evidence. Abdualla was found dead on the next day at about** ## **CRL.A.No. 328 of 2004** **-18-** **10.00 a.m. There was a gap of 24 hours in between. The other possibilities, as discussed above, cannot be ruled out when PW3 has no case that he had seen the accused inflicting any injury or any fatal injury on the head of the deceased. At the same time, I find clear evidence to convict him under Section 323 IPC. PW3 and PW4 are consistent that the accused had assaulted the deceased, and in this incident of assault, the deceased had sustained some simple injuries. This will definitely come under Section 323 IPC. The accused cannot be held liable for the things that transpired later, in the absence of proper and satisfactory ocular evidence.** **16. PW5 does not claim to have seen the incident. He had only seen the deceased being taken to the hospital in an autorickshaw, and he** ## **CRL.A.No. 328 of 2004** **-19-** **stated that he had seen a bleeding injury. This evidence cannot be accepted in view of the evidence given by PW3 and PW4 otherwise. The learned counsel for the appellant cited a decision of the Honourable supreme Court in Krishnegowda v. State of Karnatak (AIR 2017 Supreme Court 1657). The Honourable Supreme Court held that when there is material contradiction in the evidence given by the material witnesses, the accused cannot be found guilty. In this case, I do not find such a situation. PW3 and PW4 are consistent regarding the assault made by the accused. Though PW5 says that he had seen a bleeding injury, PW3 and PW4 have no such case. PW5 is not an eye witness. I find that the decision of the Honourable Supreme Court cited (supra) cannot be applied to the facts of this case when clear evidence is there** ## **CRL.A.No. 328 of 2004** **-20-** **to convict the accused under Section 323 IPC.** **In the result, the conviction against the appellant in S.C. No. 184 of 2004 of the court below is confirmed subject to the modification that the conviction shall be under Section 323 IPC, and the conviction made by the court below under Section 304 IPC will stand set aside. Though what is proved is only an instance of assault, the severity of assault made by the accused is well proved by the evidence of PW3. Though everything in detail was reported to the police by PW1, he turned hostile. The accused is being found not guilty under Section 304 IPC only because the prosecution could not collect definite materials to connect him with the fatal injury. In the above circumstances, though the finding is only under Section 323 IPC, I find it absolutely necessary to impose the maximum** **CRL.A.No. 328 of 2004** **-21-** **sentence under Section 323 IPC. Accordingly, the accused is sentenced in appeal to undergo rigorous imprisonment for one year under Section 323 IPC, and the fine sentence imposed by the court below will stand reduced to Rs.1,000/(Rupees one thousand only), which is the maximum under Section 323 IPC. The default sentence is maintained. The appellant will surrender before the trial court within one month from this date to serve out the sentence, and to make payment of the fine amount voluntarily, on failure of which steps shall be taken by the trial court to enforce the sentence imposed in appeal, and realise the fine amount, or enforce the default sentence.** **Sd/P.UBAID** Ds 19.12.2018 **JUDGE**