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2004 DIGILAW 382 (KER)

Kambiveli Unni v. State Of Kerala

2004-08-12

K.A.ABDUL GAFOOR

body2004
Judgment :- Accused No.3 in SC.No.43/1996 on the file of the Sessions Court, Thalassery is the appellant. He is faced with the conviction for the offence punishable under Section 304 Part II IPC and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.15,000/-. This conviction is assailed in this appeal. 2. He was charged for the offences punishable under Sections 447, 341, 325, 302 read with Section 34 IPC along with his brother and brother’s wife, accused Nos.1 and 2. Accused No.1, the brother’s wife was acquitted and his brother accused No.2 was found guilty of the offence punishable under section 323 IPC. As the vital injury has been inflicted by the appellant the court below found that he was guilty of the offence punishable under Section 304 Part II, as he did not have an intention to cause death but had the knowledge that the injury inflicted was likely to cause death. 3. It is contended by the appellant that there is absolutely no evidence in this case to fasten any guilt on the appellant. PW2, with whom the quarrel started had not supported the prosecution case. Equally so is PW3, the husband of PW2. They are the parents of accused No.1. Only PWs. 1 and 4 had spoken in tune with the prosecution case. It was not conclusively proved that PW4, the grand son of the deceased was even present on the scene of occurrence. The only available evidence therefore is from PW1, the wife of the deceased, who was only an interested witness. Without any corroboration, the court cannot act upon the evidence of PW1 alone. In the absence of tangible evidence, the conviction has to be set aside. 4. It is further submitted that, even going by the materials produced by the prosecution there is no consistent case about the occurrence. The occurrence is differently mentioned by the deceased when he had spoken about the injury to PW8 who examined the deceased first, as is revealed from Ext.P5 wound certificate and in Ext.P1 first information statement stated to be made by the deceased to PW10, the head constable. The version is still different when PW1 had described the incident in court or when PW4 described it. On the basis of this inconsistency, it is not safe to rely on the evidence of PW1 alone. The version is still different when PW1 had described the incident in court or when PW4 described it. On the basis of this inconsistency, it is not safe to rely on the evidence of PW1 alone. As a result of this inconsistency it has to be taken that the prosecution has not revealed the true incident to the court and the benefit arising there of shall go to the accused. 5. It is further submitted that, even if the incident is stated to be proved, the deceased died due to peritonitis, because of the alleged kick on the naval portion of the deceased. There was no external injury. It can at the best bring only the offence punishable under Section 323 IPC, for causing simple hurt. In support of this contention, the decision in Daveed Manas V. State of (1972 KLT 640) is relied on. There, in spite the death arising out of peritonitis by reason of pelting of stones, the accused was convicted only for the offence punishable under Section 323 IPC. 6. First of all I will examine whether there is any inconsistency in the version by the deceased himself while passing on the information to his doctor or to the police officer who recorded the FI statement or in the version given by PW1 and 4. The incident happened as follows. 7. PW2 was engaging herself in manufacturing of illicit liquor. This was not liked by accused No.1, her daughter. Both of them used to pick up quarrels on this occasionally. Even in the evening on 24.7.1995, the day prior to the date of occurrence, there was quarrel and breaking of the utensils and vessels used by PW2. On the next early morning at about 7 a.m. accused Nos.1 and 2, the wife and the husband went to the court yard of PW2 and there was quarrel between them. Hearing the quarrel the deceased Govindan, who was living with his family in the house of PW2, being the brother in relation, came out side. He intervened in the quarrel between accused No.1 and PW.2. This resulted in a tussle between accused No.2 and the deceased. Hearing the hue and cry arising out of that, accused No.3 the brother of accused No.2 came to the scene. He pushed the deceased. The deceased fell down. At that time accused No.3 kicked on his naval. He intervened in the quarrel between accused No.1 and PW.2. This resulted in a tussle between accused No.2 and the deceased. Hearing the hue and cry arising out of that, accused No.3 the brother of accused No.2 came to the scene. He pushed the deceased. The deceased fell down. At that time accused No.3 kicked on his naval. This is how the incident had happened according to the prosecution. Later as pain developed, Govindan, the deceased, went to local hospital where from in the evening he had been referred to the district Hospital and finally to medical college hospital. A surgery was conducted. After two days of surgery he died because of peritonitis. 8. The first version given by the deceased is as contained in Ext.P5 wound certificate issued by PW8. It reveals that he sustained injury at about 7.p.m on 24.7.1995 as Kunhumani and Unni had jointly kicked, beaten and pushed. Kunhumani is accused No.2 and Unni is accused No.3, the appellant. Thus the involvement of appellant and the act of kicking had been spoken to by Govindan, the deceased, to PW8. In a wound certificate a doctor will enter only the bare minimum details and not the every description given by the victim. 9. Ext.P1 is the FI statement recorded by PW10. Therein it is recorded as Kunhumani stopped him and hit on his cheek. Unni with his leg kicked on the naval. There upon he fell down. This is not in any way inconsistent with what he had stated to PW8 as recorded in Ext.P5. The only difference is that what is recorded in Ext.P5 is the synopsis, whereas that recorded in Ext.P1 are the details. So there is no disparity in what is recorded in EXts.P5 and Ext.P1. 10. PW1 is the occurrence witness. With reference to the overt act of the appellant what she had stated is that the appellant had pushed him. He fell by his back. Then the appellant kicked on his naval. It is submitted by the counsel for the appellant that as per the version in Ext.P1 it is as a result of the kicking that the deceased had fallen down where as what PW1 says is that it was after pushing him down that accused No.3, the appellant, had kicked on his naval. This is only a minor discrepancy. It is submitted by the counsel for the appellant that as per the version in Ext.P1 it is as a result of the kicking that the deceased had fallen down where as what PW1 says is that it was after pushing him down that accused No.3, the appellant, had kicked on his naval. This is only a minor discrepancy. The stage of the deceased when he gave Ext.P1 was also relevant that he had to undergo an operation. Necessarily what PW1 who had been witnessing the incident would have said it correctly. Whatever that be kicking on the naval is common in both. In such circumstances whether the deceased had fallen down after kicking or before kicking is immaterial. 11. More over PW4 also had spoken in the same line as PW1. The contention of the appellant that PW4 was not present on the occasion also cannot be accepted in the light of the evidence given by PW5 who had been watching the incident from his court yard about 40 meters away and he had spoken to about the presence of PW4 at the sence of occurrence though, he could not described how the occurrence had taken place. Any how, presence of PW4 is much proved through PW5. 12. When PW1 and PW4 thus speak in same terms with respect to the occurrence, necessarily that has to be taken as true. So there is no inconsistency with respect to the versions about the incident. Involvement of accused No.3 is common, kicking is common, and it fell on the naval is also common. Therefore that contention cannot be accepted. 13. The other contention to be dealt with is whether PWs. 1 and 4 have to be believed or PW2 and PW3. As already mentioned above, PW2 is none other than the mother of accused No.1 and the mother in law of accused No.2. Accused No.3, the appellant is none other than brother of her son in law. PW3 is also equally related to the accused, being the father of accused No.1. Therefore they will have a tendancy to speak in favour of the brother of their own son in law. Of course PWs.1 and 4 being the wife and grand son of the deceased will also have an equal thinking that accused No.3, who had kicked the deceased, their most loved kin, shall be punished. Therefore they will have a tendancy to speak in favour of the brother of their own son in law. Of course PWs.1 and 4 being the wife and grand son of the deceased will also have an equal thinking that accused No.3, who had kicked the deceased, their most loved kin, shall be punished. But at the same time it should be born in mind by every court that kins of the deceased will not normally attempt to rope a person unconnected with the incident, unless there is any other motive. No such motive is attributed to PWs.1 and 4 nor involvement of any one else is also brought in. Therefore in this case as against the evidence of PW2 and 3, the evidence given by PWs.1 and 4 has to be believed. That was what the court below has done. That evidence in this case is sufficient enough to fasten guilty on the accused. 14. What shall that guilt be is the next question. Shall it be punishable under Section 304 Part II IPC as found by the court below or under Section 323 IPC as contended by the counsel for the appellant relying of the decision in Daveed Manas V. State (1972 KLT 640). 15. The deceased had told PW8 the first doctor who examined him that there was a kicking on him. This has been recorded in Ext.P5 by PW8. In Ext.P1 FI statement the deceased Govindan before his death had spoken to PW10 that the appellant had kicked on his naval. Ext.P6 is a wound certificate issued by PW9, the doctor attached to medical college hospital, after the surgery conducted on the deceased,that he died because of peritonitis. He had stated that the abdomen was distended and there was evidence of peritonitis. The internal injury was due to kick on abdomen. PW14 the doctor who conducted autopsy and issued Ext.P10 postmortem certificate has also stated that the decease died due to peritonitis following blunt injury of abdomen. No injury on any other part of his body is noticed. Necessarily the kicking resulted in peritonitis and the death was due to peritonitis. 16. It is true that this court in the decision in Daveed manas’s case had in an appeal, converted the conviction for the offence punishable under section 304 Part II to that under section 323, as the death was due to peritonitis. Necessarily the kicking resulted in peritonitis and the death was due to peritonitis. 16. It is true that this court in the decision in Daveed manas’s case had in an appeal, converted the conviction for the offence punishable under section 304 Part II to that under section 323, as the death was due to peritonitis. In that case the accused pelted stone on the deceased. Stone fell on his abdomen. It resulted in peritonitis. That stone was found to be not heavy one as well by the court. Necessarily, in that case, there was no knowledge for the accused that such bodily injury was likely to cause death. The court came to the conclusion that “it cannot be assumed as a matter of course that normally when a person throws a stone at another, he should have the necessary knowledge that such an act would cause in the normal course of conduct death of the personal aimed against”. That was the particular fact situation of that case, which persuaded this court, in appeal, to convert the conviction for the offence punishable under Section 304 Part II to that under section 323 IPC. 17. This court in that decision had relied on a supreme court decision reported in Jani Gulab Shiakh V. State of Maharashtra (current Judgments series, 1969 August (unreported) ) wherein the apex court had made it clear that “We are unable to agree with the High Court that the accused must be posted with the knowledge that death was likely to result in the circumstances the injuries were caused by him to the deceased. It is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured.” The case considered by the Supreme Court was that of death because of fall as a result of a push, where there was no knowledge that pushing may cause death and not because of peritonitis arising out of kick on the abdomen, where the situation may be different. It is relying on that Supreme Court decision this court came to the conclusion in the said case that it cannot be assumed normally when a person throws stone on another, he should have the necessary knowledge that such act would result, in normal course, in death. 18. But in this case facts are different. It is relying on that Supreme Court decision this court came to the conclusion in the said case that it cannot be assumed normally when a person throws stone on another, he should have the necessary knowledge that such act would result, in normal course, in death. 18. But in this case facts are different. As spoken to by PW1 and also PW4, accused No.3, the appellant, had pushed the deceased and he fell down by his back. There upon as spoken to by PWs.1 and 4, accused No.3, the appellant kicked on the deceased. PW1 says that it is on naval. PW4 says that it is on head. At the same time PW4 has seen kicking. But no injury on head portion has been pointed out. Medical evidence shows that the injury was on abdomen and it resulted in peritonitis. In such circumstances, even if there is such a different version from PWs.1 and 4 with respect to the portion where kicking was made, going by the medical evidence on record it is evident that it fell on the naval portion of the deceased as spoken to by PW1 and as is revealed by Ext.P6 and P10. Kicking on the naval after pushing one down shall necessarily be with the knowledge that, such kicking will casue as much harm as may be possible, including death. Therefore such act committed by the accused was done with knowledge that it was likely to cause death or to cause such bodily injury as was likely to cause death. This will necessary fall under Section 304 Part II IPC. Conviction is therefore to be upheld. The sentence being only to the minimal extent of rigorous imprisonment for three years, it does not call for any interference. The fine also is not liable to be interfered with. Appeal fails and is dismissed.