Thapan Khera v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934 CRL.A.No. 1249 of 2009 ( ) -------------------------SC.14/2007 of ADDL.SESSIONS COURT (ADHOC-I), KOZHIKODE APPELLANT(S)/APPELLANT/ACCUSED: ------------------------------ THAPAN KHERA, S/O.SUPAN CHAND KHERA AGED 24 YEARS, SEETHAPUR VILLAGE, AMUSADOHO HOWRA DISTRICT, WEST BENGAL. BY ADVS.SRI.P.K.VARGHESE SRI.K.S.ARUN KUMAR RESPONDENT(S)/STATE: -------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ. --------------------------------------------CRL.A.NO.1249 OF 2009 --------------------------------------------Dated 30[th] July, 2012 ## JUDGMENT ## Sasidharan Nambiar,J. Appellant was convicted and sentenced to imprisonment for life and fine of Rs.25,000/and in default rigorous imprisonment for two years for the offence under Section 302 of Indian Penal Code in S.C.14/2007 by Additional Sessions Judge, Kozhikode. The appellant was the first accused. The case as against the second accused was split up by the Magistrate and was not committed as he absconded at the committal stage. The appellant though granted bail, did not appear. Later he was arrested and produced before the learned Magistrate. He was remanded to judicial custody and the case was committed. CRA 1249/09 2 Appellant, second accused and deceased Shaik Tasmal @ Abdul are all natives of West Bengal. They were employed under PW1 Sanjay Chakravarthi, who also hails from West Bengal. They were manufacturing gold ornaments with the gold supplied by jewellers and the ornaments are being supplied to the respective jewellers. PW1 obtained possession of Baba House, situated on the back side of P.V.S Hospital, Kozhikode to house the employees including the deceased and the accused. The prosecution case is that the deceased had stolen the gold of the appellant and on 6/5/2001 between 1 p.m and 3 p.m demanding the gold, appellant along with the second accused, inflicted injuries on Shaik Tasmal @ Abdul and caused his death and thereby committed the offences under Sections 342 and 302 read with Section 34 of Indian CRA 1249/09 3 Penal Code. PW14 lodged the FI statement recorded by PW16, Sub Inspector of Police, Town Police Station who registered the crime. After sustaining the injuries, injured Shaik Tasmal @ Abdul was taken to P.V.S Hospital by the accused from where he was declared dead. The body was removed to Medical College Hospital, Kozhikode. PW20, Circle Inspector of Police prepared Ext.P1 inquest report and sent the requisition for autopsy. PW9, then Associate Professor of Forensic Medicine conducted the autopsy and prepared Ext.P4 postmortem certificate, finding that the death was caused “due to neurogenic cardiac failure due to intense pain due to repeated beating in a tied up position”. While the accused were attempting to leave by train, they were apprehended from the Railway Station and arrested by PW16. PW12 CRA 1249/09 4 questioned the appellant and on the information furnished by him, seized MO.2 plastic wire, MO.1 reaper which was used for beating the deceased, at the time of preparing Ext.P9 scene mahazar. After completing the investigation PW20 laid the charge. By that time accused were released on bail. Learned Magistrate committed the case as against the appellant, when his presence was procured by issuing non bailable warrant as he had absconded after releasing him on bail. Learned Sessions Judge made over the case to Additional Sessions Court for trial. 2. When the charge for the offence under Sections 342 and 302 of Indian Penal Code was framed, appellant pleaded not guilty. The prosecution examined 21 witnesses and marked 20 exhibits and identified five material CRA 1249/09 5 objects. After closing the prosecution evidence, when the appellant was questioned, he denied the incriminating evidence put to him. The stand taken by the appellant was that he reached Kozhikode from Thrissur by train and had gone out to take food to a hotel and meanwhile, the police arrested him and kept him under custody and he has nothing to do with the other witnesses or the incident. Learned Additional Sessions Judge on appreciation of evidence, found the appellant guilty and convicted and sentenced him as mentioned above. It is challenged in the appeal. 3. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. 4. Argument of the learned counsel appearing for the appellant is that though CRA 1249/09 6 Pws.3, 4 and 14 were examined as eye witnesses, Pws.3 and 4 turned hostile and did not support the prosecution and though PW14 is the first informant based on which Ext.P11 FIR was prepared, PW14 was not asked anything about Ext.P1 FI statement and FI statement was not proved. It was pointed out that though PW16 deposed that he prepared Ext.P11 FIR, he also did not depose that based on the statement of PW14 he prepared FI statement. In such circumstances, the evidence of PW14 also cannot be believed. It was argued that even if the entire prosecution case is to be accepted, it will not establish an offence under Section 302 of Indian Penal Code and at the worst appellant could only be found guilty under Part II of Section 304 of Indian Penal Code. Reliance was placed on the decisions of the CRA 1249/09 7 Supreme Court in **Molu and others v. State of Haryana (1976 (4) SCC 362), Rattan Singh and Ran Singh & another v. State of Punjab (AIR 1988 SC 2147** and **Ranjha and another v. State of Punjab (AIR 1996 SC 2741** ). Learned counsel argued that evidence of PW14 with Ext.P4 postmortem certificate would only establish that the death was caused due to the pain and the pressure due to repeated beating and there is no evidence to prove that either the appellant or the second accused had an intention to cause his death or that they are aware that the injuries are likely to cause death and therefore, they can only be convicted under Section 304 part II of Indian Penal Code. 5. Learned Public Prosecutor submitted that there is no reason to interfere with the CRA 1249/09 8 appreciation of evidence. It was argued that evidence of PW14 with Ext.P4 establish that the deceased sustained 31 injuries by beating and he was beaten after tying his hands and legs as proved by the evidence of PW14 and the death was caused as the deceased was beaten after tying him and in such circumstances, it is clear that the accused had the intention to cause his death and hence the appeal is only to be dismissed. 5. The deceased, appellant, second accused and PW14 were all employees of PW1 and were residing in Baba House taken on rent by PW18 from PW12 Moideen Koya, to enable PW1 to reside therein along with his employees. Evidence of PW18 establish that PW1 is engaged in preparing gold ornaments, with the gold supplied by engaging workers brought from his CRA 1249/09 9 native place, West Bengal. Though appellant had a case at the time of questioning under Section 313 of Code of Criminal Procedure that he reached Kozhikode only on the date of the incident, when Pws.3, 4 and 14 were examined, there was not even a suggestion to that effect. The evidence establish that appellant was also residing in Baba house along with the deceased, second accused, Pws.1 and 14. 7. The evidence of PW14 with Ext.P4 postmortem certificate establish that the death of Shaik Tasmal @ Abdul was due to neurogenic cardiac failure, caused by intense pain, due to repeated beating in a tied up position. Apart from several contusions the following two antemortem injuries were noted by PW14 in Ext.P4. 1. Multiple patterned imprint contusions marks (pattern CRA 1249/09 10 of rim of long rectangular block 2 cm. wide) varying in length from 3 cm. each (2 Nos. on outer aspect of right upper arm) 25.5 cm (maximum obliquely across outer right thigh) clustered over back of chest, criss-cross, few over outer left upper arm, few over right upper arm, 2 over outer left chest and one over outer right thigh. Total 31 in number. 2 cm wide subcutaneous contusions on both soles of feet, front half. 2. Ligature mark in 3 turns of 4 strands 0.4 cm thick coir imprint around both wrists. Tissues (fat and muscles) intermittently contused underneath. The mark was a contused pressure abrasion. Evidence of PW14 establish that after the appellant and the second accused had beaten the CRA 1249/09 11 deceased while he was on the up-stairs of the house, he was made to fall from up-stairs to the down stairs. Deceased then asked for water and milk was supplied. Thereafter he was tied up and was again beaten. Ext.P4 supports the prosecution case of drinking of milk, as stomach contained curd milk at the time of autopsy. The injuries are not sufficient in the ordinary course of nature to cause death. It is proved that the death was caused due to neurogenic cardiac failure. The question is whether the injuries were inflicted by the appellant with the second accused and if so, whether it was inflicted with the intention to cause his death. 8. Evidence of PW14 who was residing along with the appellant and the deceased and also an employee under PW1, establish what CRA 1249/09 12 transpired there on that fateful day. PW14 deposed that he was one of the 35 residents of Baba House and all of them are natives of West Bengal and are gold smiths. 6/5/2001 was a Sunday. It was a holiday. PW14 was cleaning his table from the up-stair portion. Appellant came to up-stairs carrying MO.1 and with MO.1 he beat the deceased Shaik Thasmal @ Abdul, asking where he had kept the gold stolen from the appellant. The deceased went downwards and returned back with some gold. He handed over that gold to the appellant. Appellant started beating him again stating that, that gold is not sufficient. Second accused then obtained MO.1 reaper from the hands of the appellant and started beating him. They took the deceased near to the stair case and pushed him down. He fell down. The appellant along with the second CRA 1249/09 13 accused reached near him. They helped him to stand up. PW14 then tried to intervene. Appellant asked him to go away and not to interfere. Appellant tied the hands of the deceased and started beating him again. Finding the incident Sudeep who is another inmate informed PW1. Hearing the sound, by that time two persons of the locality reached Baba House and they returned. By that time Shaik Tasmal @ Abdul had fallen on the floor. He asked for water. Though water was given, he did not drink. The appellant and the second accused took the deceased on their shoulders to the hospital. MO.1 reaper was left there which was later seized by the police. Though PW14 was cross examined, nothing was brought out to discredit his testimony. We find no reason to disbelieve the evidence of PW14 that appellant CRA 1249/09 14 demanded gold which was allegedly taken away by the deceased and had beaten him. The evidence also prove that deceased had given some gold to the appellant and not satisfied, appellant beat him further. It is also clear from the evidence that the injuries on the deceased were inflicted by the appellant and the absconding second accused. It is also clear that death of Shaik Tasmal @ Abdul was caused by beating. Though Pws.3 and 4 the other eye witnesses turned hostile, the evidence of PW14 is sufficient to hold that it was the appellant along with the absconding second accused, who inflicted the injuries on the deceased and thereby caused his death. 9. Then the question is what is the offence proved. Though learned Sessions Judge convicted the appellant for the offence under CRA 1249/09 15 Section 302 of Indian Penal Code, the offence will not come under Section 300 of the Indian Penal Code. The injuries were inflicted by beating with MO.1. Those injuries were not inflicted on the vital parts of the body of the deceased. From the nature of the injuries inflicted, it cannot be found that appellant had an intention to cause the death of the deceased. Therefore, clause firstly of Section 300 of Indian Penal Code has no application. None of the injuries either independently or cumulatively are sufficient to cause death in the ordinary course of nature. Evidence of PW9 the doctor, who conducted the autopsy do not prove that the injuries are sufficient in the ordinary course of nature to cause death. Therefore, clause thirdly of Section 300 is not attracted. At best, it could be said that the CRA 1249/09 16 appellant, and the second accused, when inflicted the injuries by beating the deceased, had the necessary knowledge that it is likely to cause the death of Shaik Tasmal @ Abdul. If that be so, the offence would come only under Section 299 of the Indian Penal Code and punishable under Part II of Section 304 of the Indian Penal Code. 10. Honourable Supreme Court in **Molu** ## **and others v. State of Haryana (1976 (4) SCC** **362)** considered the nature of the offence by causing the death due to multiple injuries inflicted. It was held that the injuries are not on any vital part of the body and there is nothing to show that accused intended to cause the deliberate murder and in such circumstances, there is no legal evidence to prove that accused intended to cause the murder CRA 1249/09 17 of the deceased. It was held; “The fact however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all the accused appear to have acted together and under a preconceived plan which developed at the spot and which is clear from the fact that they suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with the knowledge that the injuries caused by them were likely to cause the death of the deceased.In such circumstances, accused have committed the CRA 1249/09 18 offence under Section 304 Part II of the Indian Penal Code and not one under Section 302 of I.P.C ” ## Honourable Supreme Court in **Ranjha and another** **v. State of Punjab (AIR 1996 SC 2741)** holding that injuries found on the person of the deceased were on the back of the lower part of the chest beneath which three ribs were found fractured and all other injuries were simple and most of them were inflicted on non vital parts of the body, held that if really the three accused persons intended to cause the death of the deceased, it was likely that they would have caused much more grievous injuries on the vital parts of the body, more so when they were armed with deadly weapons. It was therefore, held that the accused committed only the offence under Section 304 Part II and not under Section 302 of the Indian Penal Code. CRA 1249/09 19 11. Considering the nature of the injuries inflicted, the fact that the injuries were not inflicted on any vital part of the body it is clear that the appellant, had no intention to cause the death. The injuries inflicted are not sufficient in the ordinary course of nature to cause death. Hence conviction for the offence under Section 302 of the Indian Penal Code cannot be sustained. 12. Appeal is allowed in part. Conviction of the appellant for the offence under Section 302 of the Indian Penal Code is set aside and he is found not guilty of the said offence. Conviction of the appellant for the offence under Section 349 of the Indian Penal Code and the sentence awarded are confirmed. The appellant is found guilty for the offence under Section 299 and punishable CRA 1249/09 20 under Section 304 Part II of the Indian Penal Code. Appellant is convicted for the offence under Section 304 Part II of the Indian Penal Code and sentenced to rigorous imprisonment for five years. The sentence shall run concurrently with the sentence for the offence under Section 349 of the Indian Penal Code. The appellant is entitled to set off as provided under Section 428 of the Code of Criminal Procedure, for the period he has been in custody in this case. M.SASIDHARAN NAMBIAR, (Judge). P.BHAVADASAN, (Judge). uj.