Udayappara Chandran @ Chalil Chandran and others 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** **MONDAY,THE 15TH DAY OF OCTOBER 2018/23RD ASWINA, 1940** **CRL.A.No.151 of 2013** ## **AGAINST THE JUDGMENT DATED 05-01-2013 IN SC.NO.783/2007 OF THE SESSIONS COURT,THALASSERY** **CRIME NO. 107/2006 OF PAYYAVOOR POLICE STATION, KANNUR** ## **APPELLANTS/ACCUSED:** **1 UDAYAPPARA CHANDRAN @CHALIL CHANDRAN (DIED) AGED 58 YEARS, S/O.KUMARAN, TODDY TAPPING,PAYYAVOOR AMSOM, PAISAKKARI,PADUVILANG.** **THE 2ND APPELLANT IS RECORDED AS THE LEGAL HEIR OF THE 1ST PETITIONER/1ST APPELLANT AS PER ORDER DATED 4.10.2018.** **2 UDAYAPPARA SOJO SOJU AGED 32 YEARS, S/O.UDAYAPPARA CHANDRAN, DRIVER, PAYYAVOOR AMSOM, PAISAKKARI,PADUVILANG.** **3 SUJIN, S/O UDAYAPPARA CHANDRAN UDAYAPPARA HOUSE, KOLITHATTU PO, KANNUR - 670 022** **4 THANKAMMA, W/O. LATE UDAYAPPARA CHANDRAN @ CHALIL CHANDRAN, AGED 58 YEARS UDAYAPPARA HOUSE , KOLITHATTU PO, KANNUR - 670 022.** **ADDL. APPELLANTS A3 AND A4 ARE IMPLEADED AS PER ORDER DATED 4/10/2018 IN CRL.M.A. NO.1/2018 IN CR.A.NO.151/2013.** **BY ADVS. ALAN PAPALI SMT.DHANYA P.ASHOKAN SRI.GILBERT GEORGE CORREYA SRI.SOJAN MICHEAL** Crl.Appeal No.151 of 2013 :: 2 :: ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA (SUB INSPECTOR OF POLICE, PAYYAVOOR POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3.10.2018, THE COURT ON 15.10.2018, PASSED THE FOLLOWING:** Crl.Appeal No.151 of 2013 :: 3 :: ## **JUDGMENT** ## **Somarajan, J.** Against the judgment of conviction and order of sentence in S.C.No.783 of 2008 of Sessions Court, Thalassery dated 5.1.2013, the accused Nos.1 and 2 came up with this appeal. Accused No.1 was found guilty for the offence punishable under Ss.302 and 307 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,00,000/-, in default, to undergo SI for six months for the offence under S.302 IPC and sentenced to undergo RI for six years and a fine of Rs.25,000/- in default to undergo SI for three months for the offence punishable under S.307 IPC with a direction to undergo substantive sentence concurrently and to release the fine amount to the legal heirs of deceased Shyju @ Ambily. Accused No.2 was found guilty for the offence punishable Crl.Appeal No.151 of 2013 **==> picture [23 x 8] intentionally omitted <==** under S.325 IPC and sentenced to undergo RI for a period of six months. 2. During the pendency of the appeal, accused No.1 passed away. Since there is an order for payment of fine, the legal heirs impleaded themselves as additional appellants 3 and 4 and accused No.2 was recorded as one of the legal heirs of deceased accused No.1/the first appellant. 3. One of the main question that came up for consideration is whether the appeal against conviction and order of sentence would abate when there is order to pay fine and what would be the legal position when the appeal is against the conviction and order of sentence when the order of sentence is a composite order for payment of fine and in default, to undergo imprisonment. The legal position settled by the Apex Court that the order imposing fine would not abate on the death of Crl.Appeal No.151 of 2013 **==> picture [23 x 9] intentionally omitted <==** accused even though the order levying fine is subject to a default sentence in _**Om Prakash etc. v. The State of Haryana and another (AIR 1979 SC 1266) and State of Andhra Pradesh v. Narasimha Kumar (2006 KHC 873).**_ 4. The prosecution case is that the accused No.1 who is the father of accused No.2 had some quarrel and verbal altercation with the deceased in connection with destruction of some rubber saplings belonged to one Vazhakkad Babu (PW15) and due to the intervention of PW8, CW4 and CW15, both of them went away. On the same day by evening by 7 p.m. when the deceased along with PW1 to PW3 standing in front of a toddy shop, the accused No.2 came there in his jeep bearing No.KL14/B.5825 and slapped on the cheek of deceased, as a result he fell down. Accused No.1 also came there and all on a sudden took out a knife from his waist and stabbed on him and on the way to Medical College Hospital, Pariyaram, he Crl.Appeal No.151 of 2013 **==> picture [23 x 9] intentionally omitted <==** succumbed to the injuries. PW1 also received some injury when intervened in the attack against the deceased and after admission and treatment he was discharged from the hospital. Hence, they tried for the offence punishable under Ss.307 and 302 r/w Sec.34 IPC. 5. The learned Sessions Judge found accused No.1 guilty of offence punishable under S.302 and 307 IPC and convicted thereunder and sentenced to undergo imprisonment and fine. A fine of Rs.1 lakh was ordered for the offence under S.302 IPC and Rs.25,000/- for the offence under S.307 IPC. As discussed earlier, though accused No.1 passed away the appeal will not abate since there is an order imposing fine. Legal heirs were brought on record, who proceeded with the appeal. 6. There are eye witnesses to the alleged incident who were examined as PW1 to PW3 and nothing was brought out to discredit their oral Crl.Appeal No.151 of 2013 **==> picture [23 x 8] intentionally omitted <==** evidence. The medical evidence adduced also support the main substratum of the prosecution case and not in conflict. PW22 the Doctor who conducted autopsy on the body of the deceased had given expert opinion regarding the cause of death and also the possibility of having the injuries noted as antemortem which lead to the death of victim by the impact of MO1 knife. The injury was caused on a vital part of the body of the deceased and the weapon used is a sharp edged knife. The motive behind the crime is also established in connection with the earlier incident happened on the same day. It has also come out in evidence that accused No.1 inflicted injury on the victim without any provocation. All the eye witnesses PW1 to PW3 identified the weapon used for commission of offence. The oral evidence tendered by PW4 also gives corroboration as he is the jeep driver in whose vehicle the deceased and the injured PW1 were removed to the hospital accompanied by PW2 and PW3. :: 8 :: Crl.Appeal No.151 of 2013 7. The postmortem examination reveals the following injuries; “ _Injuries (Antemortem)_ _1. Incised penetrating wound 2.5 cms long slightly oblique at the left nipple, the upper inner end contused and the other end sharply cut. The wound entered the chest cavity through the 4[th] intercostal space, entered the heart through the front wall of right ventricle, 5 cm above the apex of the heart, and terminated in the cavity of left ventricle through the interventricular septum. Left chest cavity contained 1500 ml of blood with clots. Left lung was collapsed. The wound was directed backwards, downwards and slightly inwards for a total minimum depth of 5 cm. 2. Abrasion, 3x1 cm on the right side of chin. 3. Abrasion 5x1.5 cm on the right side of face, just below the eye._ Crl.Appeal No.151 of 2013 :: 9 :: _4. Abrasion 1.5x1 cm on the inner aspect of right leg, 6 cm above the ankle._ ” 8. The nature of injury inflicted and the weapon used without any provocation would bring the matter within the sweep of S.300 IPC. Exception I or IV to S.300 IPC will not come into play as there is no provocation and the alleged incident is not the result of a sudden fight. On the other hand, accused No.1 came with a knife, inflicted a stab injury all on a sudden on the victim. Hence, it will not come under the purview of either exception I or IV or any of the exceptions to S.300 IPC. The injury sustained by PW1 as per Ext.P20, an incised wound near the lower intra scapular region in right para spinal muscle of about 1 cm in length and 2 cm inclined downwards, would show the extensive nature of the injury sustained. The opinion given by the Doctor who examined PW1 and the injury sustained due to Crl.Appeal No.151 of 2013 **==> picture [29 x 9] intentionally omitted <==** the impact of the very same knife would satisfy the ingredient which constitute offence under S.307 IPC. Hence, no interference is required with the finding of guilt of accused for the offence punishable under Ss.302 and 307 IPC for the murder of the deceased Shyju @ Ambily and PW1 and the conviction thereunder. 9. Since accused No.1 is no more and that he had undergone imprisonment for a considerable period before his death, we are of the view that the imposition of fine can be set aside. 10. In so far as accused No.2 is concerned, he was convicted for the offence under S.323 IPC. On going through the judgment impugned it is clear that the learned Sessions Judge rightly found the accused No.2 guilty for the offence under S.323 IPC as he had slapped on the cheek of the victim. Considering the nature and extent of the said act of accused No.2 we are of the view that the Crl.Appeal No.151 of 2013 **==> picture [28 x 8] intentionally omitted <==** sentence can be reduced to the period of detention that he had undergone which comes to 43 days. In the result, the appeal allowed in part. The finding of guilt of accused No.1 for the offence under S.302 and 307 IPC and the conviction thereunder are upheld, but the sentence of fine is set aside. The finding of guilt of accused No.2 for the offence under S.323 IPC and conviction thereunder are confirmed. Sentence is modified to the extent of detention already undergone which comes to 43 days. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** **P.SOMARAJAN** **JUDGE** ahz/