Vasu S/o Kittu v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 CRL.A NO. 1309 OF 2018** **AGAINST THE JUDGMENT IN CP 53/2014 OF JUDL. MAGISTRATE OF** **FIRST CLASS, KOTHAMANGALAM SC 122/2015 OF ADDITIONAL DISTRICT & SESSIONS** **COURT,MUVATTUPUZHA** ## **APPELLANT:** **VASU, S/O.KITTU, AGED 58 YEARS SHASTHAMPARAMBIL HOUSE,EDANADUKARA, ERAMALLOOR VILLAGE,C.NO.3885, CENTRAL PRISION, VIYYUR, THRISSUR,PIN 680010.** **BY ADV JASMINE V.H,STATE BRIEF** ## **RESPONDENT:** **STATE OF KERALA** **REPRESENTED BY S.I. OF POLICE, KOTHAMANGALAM, BY PUBLIC PROSECUTOR.** **BY ADV.E.C.BINEESH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **27.06.2023, THE COURT ON 10.07.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1309 of 2018 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **Criminal Appeal No.1309 of 2018** **-----------------------------------------------** **Dated this the 10[th] day of July, 2023** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The sole accused in S.C.No.122 of 2015 on the files of the Additional Sessions Court, Muvattupuzha has come up in this appeal, challenging his conviction and sentence in the said case. 2. One Mathews suffered injuries in an occurrence that took place on 10.02.2013 at the house of the accused and he succumbed to the said injuries later on 12.02.2013. A case was registered against the accused on 10.02.2013 itself in connection with the occurrence, under Sections 341, 323 and 325 of the Indian Penal Code (IPC). On the death of the victim, the offence punishable under Section 302 IPC was also added. After the investigation, final report has been filed in the case against the accused alleging commission of the offences 3 Crl.Appeal No.1309 of 2018 punishable under Sections 341, 323, 325 and 302 the IPC. 3. The accusation in the case is that on account of the enmity the accused had towards the deceased for not having lent him money, at about 3 p.m. on 10.02.2013, the accused beat the deceased and when he fell down, the accused stamped and kicked on the abdomen of the deceased and he succumbed to the said injuries later. On committing the accused for trial, as he pleaded not guilty to the charge framed against him by the Court of Session, the prosecution examined 33 witnesses and proved 29 documents in order to prove the guilt of the accused. After the prosecution tendered its evidence, when the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code), he denied the incriminating circumstances brought out in the evidence against him and maintained the stand that he has nothing to do the occurrence. It was stated by him that on 10.02.2013, while he was playing cards with the deceased and others in his house, the deceased sent him away for buying liquor and when the accused came back to the house with liquor, he found the deceased lying on the floor of his house in a deteriorated state 4 Crl.Appeal No.1309 of 2018 of health. It was also stated by the accused that he had no prior acquaintance with the persons who were playing cards with the deceased at the time when he left the house. Since the Court of Session did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused, however, chose not to adduce any evidence. The Court of Session, in the circumstances, on an appraisal of the materials on record, found the accused guilty of the offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-. The accused is aggrieved by the said decision of the Court of Session and hence, this appeal. 4. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 5. The learned counsel for the appellant contended that the case being one framed on circumstantial evidence, it was obligatory for the prosecution to establish beyond reasonable doubt the various circumstances relied on and that the same should constitute a chain so complete, so as to Crl.Appeal No.1309 of 2018 5 conclusively show that it was the accused and no one else who committed the crime. It was argued by the learned counsel that the circumstances established in the case do not disclose the guilt of the accused. Alternatively, it was argued by the learned counsel that at any rate, the facts disclosed do not make out a case of murder punishable under Section 302 IPC. The learned Public Prosecutor refuted the arguments aforesaid and contended that the circumstances established in the case would establish beyond reasonable doubt the guilt of the accused. It was also argued by the learned Public Prosecutor that the facts disclosed would certainly indicate that the accused had intended to inflict bodily injuries on the deceased which were sufficient in the ordinary course of nature to cause death and the case would, therefore, fall under the third clause of Section 300 IPC punishable under Section 302 IPC. 6. The point that arises for consideration is whether the conviction and sentence of the accused are sustainable in law. 7. The first and foremost question to be considered is whether the death of the victim is a homicide. PW30 is the 6 Crl.Appeal No.1309 of 2018 Doctor who conducted the post mortem examination of the body of the deceased and issued Ext.P18 postmortem certificate. Injury Nos. 10, 11 and 12 noted by PW30 on the body of the deceased read thus: “10. Contusion, 22 x 14 cm involving the whole thickness, on lower part of right side and middle of abdomen and the adjacent part of groin; 11 cm below the costal margin. The whole abdominal wall underneath was in a contused state. The rectus muscle also showed contusion in its whole thickness. 11. Contusion, 9x6.5x0.6 cm involving the whole thickness of right scrotum. The layers of scroptum showed haematoma formation and the right testis showed contusion(1.8 x 1 x 0.5 ) of its substance. 12. Contusion 6.7x4.5x0.6 cm involving the upper part of left scrotum. The layers of left scrotum showed collection of blood. The left testis also show a contusion in its upper pole. The abdominal wall showed contusion involving the whole thickness and extensive infiltration of blood in its lower part. The infiltration of blood was seen also extending the pervescical and pelvic areas. The greater omentum showed surgical sutures over an area 4.5x2 cm, with contusion around. The small intestinal loops were oedematous and showed a resection and anastomosis at a distance of about 250 cm from the duodeno-jejunal junction. The mesentery of the affected area showed multiple contusions and sutures at places. The rest of mesentery showed infiltration of blood at Crl.Appeal No.1309 of 2018 7 places. The caecum also showed infiltration of blood around. The urinary bladder wall showed contusion on its upper and front aspect; surgical sutures were seen (repair of rupture) on front and upper aspect in varying length (9 and 8.5 cm each). The lower part of bladder showed infiltration of blood. The bladder, perivescical area and the adjacent soft tissues were oedematous. The infiltration of blood was seen extending to the left paracolic area and to the left peri- nephric region. There was a perinephric haematoma mainly over the front and lower aspect of left kidney. The psoas muscle on left side showed contusion involving its front aspect. There was thrombus formation in the venous structures related to the left psoas muscle. The pelvic tissues were found crushed and showed anti-mortem clots at places. Surgical sutures were also seen at places on the pelvic wall; on left side; near the vascular structures.” PW30 deposed that the death was due to the internal effect of injury Nos.10, 11 and 12. PW30 also deposed that the said injuries could be caused by stamping, fisting and kicking and are sufficient in the ordinary course of nature to cause death. There was no serious cross-examination on the evidence tendered by PW30 on the above aspect. We are, therefore, in agreement with the finding rendered by the Court of Session that the case on hand is a case of homicide. 8. The next question is whether the prosecution has established beyond reasonable doubt that it was the accused 8 Crl.Appeal No.1309 of 2018 who caused the injuries resulting in the death of the victim. In order to consider the said question, it is necessary to refer to the evidence let in by the prosecution in this regard. Before referring to the evidence, it is necessary to note that even though it is alleged by the prosecution that the accused caused the death of the deceased as he refused to lend money to the accused, no evidence was let in by the prosecution to the prove the motive of the accused. Instead, evidence was let in by the prosecution only to prove the occurrence that had taken place on 10.02.2013 and the fact that the death of the victim was due to the injuries suffered by him in the said occurrence. 9. PW1 is the brother of the deceased. PW1 deposed that on 10.2.2013 at about 4 p.m., PW8, the first cousin of the deceased and PW1, informed him over telephone that the deceased suffered injuries in an occurrence that took place in the residence of the accused; that immediately, he went to the house of the accused and upon reaching, he found the deceased lying on the floor of the back veranda of the house in a deteriorated state of health. PW1 also deposed that he along with PW8, took the deceased to Kothamangalam Mar 9 Crl.Appeal No.1309 of 2018 Baselios Hospital first and as they were advised that injuries suffered by the deceased are serious in nature, they took the deceased to the Kolenchery Medical College Hospital. PW1 also deposed that when he reached the house of the accused, he found the accused standing in the courtyard of the house. PW4, a carpenter by profession, deposed that he knows the accused and the deceased; that while he was doing work on 10.02.2013 in the house adjacent to the house of the accused, he heard a hue and cry from the house of the accused and when he went to the house of the accused thereupon, he found the deceased lying half naked on the floor of the back veranda. PW4 also deposed that he immediately informed the matter to PW8, who, in turn, along with others, took the deceased to the hospital. PW6, the son of the deceased, deposed that at about 3:30 p.m. on 10.02.2013, PW8 informed PW6 over telephone that the accused inflicted injuries on the deceased and that PW8 is taking the deceased to the hospital. PW6 also deposed that he immediately rushed to the hospital and on his way to the hospital, as he was informed that the car in which the deceased was being taken to the hospital broke down, the deceased was 10 Crl.Appeal No.1309 of 2018 taken by PW6 in his car to the Kolenchery Medical College Hospital. PW17, the Doctor who examined the deceased at the Kolencherry Medical College Hospital deposed that the deceased was brought to the hospital at about 5.45 p.m. on 10.02.2013 with an alleged history of assault by a known person. There was no serious challenge in the crossexamination to the evidence tendered by PWs 1, 4, 6 and PW17 as referred to above. 10. PW7, a neighbour of the accused, deposed that he saw the accused and the deceased going inside the house of the accused through its back door; that after some time, he heard a hue and cry from the house of the accused and when he went to the house of the accused thereupon, he found the deceased lying on the floor of the back varanda of the house, and the accused was stamping on his body. PW12, the father of PW7 also gave evidence in tune with the evidence tendered by PW7. The evidence tendered by PW7 and PW12 that they saw the accused kicking and stamping the deceased at the back veranda of the house of the accused, was not accepted by the Court of Session on account of a few significant omissions in 11 Crl.Appeal No.1309 of 2018 the statements given by the said witnesses to the police. On an evaluation of the materials on record, we are in agreement with the view taken by the Court of Session in this regard. 11. PW8 deposed that by about 3 p.m. on 10.02.2013, PW4 came to his house and informed him that the deceased was lying in a deteriorated state of health in the house of the accused; that he immediately informed the matter to PW1 as also PW6, rushed to the house of the accused and found the deceased in the said condition. PW8 also deposed that he along with PW1 took the deceased to the Kolenchery Medical College Hospital and while in transit, the deceased stated to PW8 that the accused stamped on his abdomen as also his back and that he is therefore, unable to move. PW8 deposed that it was also stated to him by the deceased that he wants to pass urine and when asked again as to what happened, the deceased did not say anything. The relevant portion of the evidence of PW8 reads thus: "ക�റ�ൽ പ��യപ��ൾ എന� �റ� എന� PW1 പ��ദ�ച�. വ�സ� എന റ വയറ�ൽ �വ�ട�, ന�ടല�ൽ �വ�ട�, എന�ക� അനങ�ൻ ��ട�ല, മ!ത#$ ഒഴ�ക�ൻ മ�ട�ന� എന� �റഞ�. ���ന എന� �റഞ� (Q) ���ന ഒന�$ �റഞ�ല (A)” PW8 was cross-examined thoroughly by the learned counsel for 12 Crl.Appeal No.1309 of 2018 the appellant on the said evidence tendered by him. During cross-examination, when PW8 was asked whether he informed the police during interrogation as to the statement claimed to have been made to him by the deceased, he replied that he does not remember. However, later, when PW33, the investigating officer was examined in the proceedings, the learned counsel for the appellant himself elicited from PW33 that PW8 had informed the police that the deceased has stated to PW8 that the accused stamped on his abdomen. Inasmuch as it was established that the evidence tendered by PW8 as regards the statement made to him by the deceased while the deceased was being taken to the hospital, is consistent with his previous statement made to the police, according to us, there cannot be any impediment in accepting the evidence tendered by PW8 in this regard. 12. Before proceeding further, it is necessary to mention that PW1 and PW6 also stated in their evidence that while the deceased was being taken by them to the hospital, the deceased informed them also that the accused stamped and kicked him on his abdomen. On an evaluation of the 13 Crl.Appeal No.1309 of 2018 materials on record, we are of the view that it is not safe to place reliance on the said evidence tendered by PW1 and PW6 as the same is not consistent with their previous statements. 13. Keeping in mind what is stated in the preceding paragraph, let us now consider whether the various circumstances brought out in evidence by the prosecution would constitute a chain so complete to conclusively show that it was the accused, and no one else who committed the crime. As noted, the circumstances established in the case are that the deceased went to the house of the accused along with the accused on the date of occurrence; that after some time, a hue and cry was heard from the house by the people in the neighbourhood; that when they rushed to the house of the accused upon hearing the hue and cry, they found the deceased lying on the floor of the back veranda of the house half naked in a deteriorated state of health and that there was nobody else in the house of the accused at the relevant time other than the accused. The said circumstances, coupled with the evidence tendered by PW8 that when the deceased was being taken to the hospital, the deceased stated to him that 14 Crl.Appeal No.1309 of 2018 the accused stamped and kicked on his abdomen, which is relevant under Section 32(1) of the Evidence Act, being a dying declaration as to the cause of his death and also the evidence tendered by PW30 that it is due to the injuries sustained to his abdomen and genitals that the death of the deceased occurred, according to us, would establish beyond reasonable doubt that it is the accused who caused the injuries on the deceased which resulted in his death. We take this view also for the reason that had it not been the accused who inflicted injuries on the deceased, the normal human conduct expected of the accused after the occurrence, is to inform the matter to the police or at least to the neighbours for taking the deceased to the hospital, whereas, as evident from the deposition of the witnesses referred to above, the accused remained in his house without doing anything that is expected of him, in the common course of natural events and human conduct. 14. The next question is as to whether the proved facts in the case on hand would amount to the offence punishable under Section 302 IPC. It is seen that though it was contended before the Court of Session that the proved facts do 15 Crl.Appeal No.1309 of 2018 not amount to the offence punishable under Section 302 IPC, the Court of Session rejected the same. When the learned Public Prosecutor was required to address arguments on this aspect, namely, whether the facts disclosed would make out a case of murder punishable under Section 302 IPC, the learned Public Prosecutor argued persuasively, after referring to the proved facts, that the prosecution has made out a case of murder punishable under Section 302 IPC. The argument advanced by the learned Public Prosecutor in this regard was that having regard to the fact that the accused inflicted multiple blows on the abdomen when the deceased was lying on the floor, the intention on the part of the accused to cause the death of the victim could certainly be inferred. If that be so, the case would fall under clause (1) of Section 300 IPC. Alternatively, it was argued by the learned Public Prosecutor that if the intention on the part of the accused to cause the death of the deceased cannot be inferred, at any rate, it is a case where the intention on the part of the accused to cause bodily injuries on the deceased which are sufficient in the ordinary course of nature to cause death can certainly be 16 Crl.Appeal No.1309 of 2018 inferred and if that be so, the case would fall under clause (3) of Section 300 IPC. To bring home the point, the learned Public Prosecutor relied on the evidence tendered by PW30 that injury Nos.10, 11 and 12 are sufficient in the ordinary course of nature to cause death. 15. As noted, the case of the prosecution in essence is that the deceased took the accused in his scooter on the date of occurrence and while they were together in the house of the accused, on account of the enmity the accused had towards the deceased for not having lent him money, the accused beat the deceased and when the deceased fell down, the accused stamped the kicked him on his abdomen successively. As indicated earlier, there was no evidence to show that the accused inflicted injuries on the deceased on account of the enmity he had towards the deceased for having not lent him money. In the absence of any evidence for the motive, having regard to the evidence on record, it can only be inferred that the accused caused injuries to the deceased on account of a sudden quarrel. We take this view for the reason that it was the deceased who took the accused to the house of 17 Crl.Appeal No.1309 of 2018 the accused in his scooter on the date of occurrence. The evidence on record does not indicate any weapon having been used by the accused to inflict injuries on the deceased. Instead, the accused only beat the deceased and when the accused fell down, the accused stamped and kicked the deceased on his abdomen. The place of occurrence being the house of the accused, if the accused had the intention to cause the death of the deceased, he could have used a weapon or other object available in his house to inflict injuries on the deceased. In the aforesaid circumstances, we are unable to accept the argument advanced by the learned Public Prosecutor that the accused had the intention to cause the death of the deceased. 16. But from the conduct of the accused, it can certainly be inferred that the accused committed the objectionable acts, with the intention of causing bodily injury to the deceased. If the acts committed by the accused could be considered as acts committed with the said intention, the case would certainly come under clause (3) of Section 300 IPC and the accused can be convicted for murder under Section 302 IPC, if the injuries intended to be inflicted by the accused on 18 Crl.Appeal No.1309 of 2018 the deceased are sufficient in the ordinary course of nature to cause death. On the other hand, if the injuries intended to be inflicted are only injuries as are likely to cause death, the offence would fall only under clause (2) of Section 299 IPC and the accused can be convicted only for culpable homicide not amounting to murder under Part-I of Section 304 IPC. It is now settled that the distinction between a bodily injury 'likely to cause death' and a bodily injury 'sufficient in the ordinary course of nature to cause death' is real and the difference between clause (2) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. The words “likely to cause death” in clause (2) of Section 299 conveys the sense of probable as distinguished from a mere possibility and the words “sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature [See **Augustine Saldanha v. State of Karnataka** , (2003) 10 SCC 472]. It is also settled that the question whether the injury intended to be inflicted by the accused on the deceased is sufficient to cause 19 Crl.Appeal No.1309 of 2018 death in the ordinary course of nature, is purely inferential which has nothing to do with the intention of the offender and has to be decided objectively, having regard to the degree of probability of death [See **Virsa Singh v. State of Punjab** , 1958 SCR 1495]. In **Reg. v. Govinda,** 1876 SCC OnLine Bom 2, the view taken by the Bombay High Court was that the question whether the injury intended to be inflicted is one which is “likely to cause death” or one which is “sufficient in the ordinary course of nature to cause death” can be generally resolved having regard to the nature of the weapon used. 17. Reverting to the facts, inasmuch as the accused did not use any weapon and inasmuch as he inflicted blows by stamping and kicking on the abdomen of the deceased when he was lying on the floor, according to us, it cannot be said that the injuries intended to be inflicted by the accused on the deceased are injuries sufficient in the ordinary course of nature to cause death, but are only bodily injuries that are likely to cause death. We take this view for the reason that the chance of survival in the case of such injuries under normal circumstances, are more than a chance of death. If that 20 Crl.Appeal No.1309 of 2018 be so, the offence committed by the accused can only fall under clause (2) of Section 299 IPC namely, culpable homicide not amounting to murder punishable under Part-I of Section 304 IPC inasmuch as the accused had intended to inflict bodily injuries on the deceased. Needless to say, the conviction of the accused needs to be brought under Part-I of Section 304 IPC. On an evaluation of the facts and circumstances of the case, we are also of the view that rigorous imprisonment for a period of seven years would be just and adequate for the offence committed by the accused. In the result, the appeal is allowed in part, the conviction entered against the accused is altered to the offence punishable under Part-I of Section 304 IPC and the sentence imposed on the accused is modified to rigorous imprisonment for a period of seven years. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** YKB