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2015 DIGILAW 1406 (KER)

Jayakudy v. State of Kerala

2015-10-08

C.T.RAVIKUMAR, K.P.JYOTHINDRANATH

body2015
JUDGMENT : The sole accused in S.C.No.329 of 2010 on the files of the Court of II Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha who was tried, convicted and sentenced for the offences punishable under sections 449 and 302 of the Indian Penal Code, is the appellant. For the conviction under section 302, IPC he was sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for one year. For the offence punishable under section 449, IPC, on conviction, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for six months. The substantive sentences of imprisonment were ordered to be run concurrently. 2. The case of the prosecution is as follows:-On 24.3.2010 at about 9.30 p.m. the appellant-accused trespassed into the shop room bearing No. 5/453 of Vellathooval Grama Panchayat which was in the authorised occupation of the deceased, his two brothers and their co-workers. On being refused to be accommodated in the said room and turned out of there at 9 p.m. the appellant-accused went away and then, turned up there again by about 9.30 p.m. armed with a soda bottle. On entering the said room, he broke the bottle and stabbed at the neck of the deceased Arumughan. PWs 2 and 3 took Arumughan to the hospital and he breathed his last, from the hospital on the same day. At 2 a.m. on 25.3.2010, PW1 Thankaraj, the brother of the deceased went to Adimali Police Station and gave ExtPl First Information Statement which was recorded by PW12 and based on the same, he registered Ext.P1(a) FIR. PW11 reached the Taluk Headquarters Hospital, Adimali and conducted inquest on the body of Arumughan and prepared Ext.P3 inquest report. He also conducted the investigation. He prepared Ext.P4 scene mahazar and also secured Ext.P5 scene plan. The apparel of the accused were seized under Ext.P2 mahazar. He prepared Ext.P12 property list and later filed Ext.P13 report deleting section 450, IPC and adding 449, IPC. He caused production of the material objects for sending them for chemical analysis and also arrested the accused under Ext.P9 memo on 25.3.2010. The apparel of the accused were seized under Ext.P2 mahazar. He prepared Ext.P12 property list and later filed Ext.P13 report deleting section 450, IPC and adding 449, IPC. He caused production of the material objects for sending them for chemical analysis and also arrested the accused under Ext.P9 memo on 25.3.2010. After the arrest of the appellant-accused, noting the injuries on his person, he was taken to Taluk Headquarters Hospital, Adimali. PW9 examined him and issued Ext.P7 wound certificate. After completing the investigation, PW11 laid the charge against the appellant-accused. The case was committed by the Court Judicial First Class Magistrate, Adimali as per proceedings in C.P.40 of 2010 to the Court of Session, Thodupuzha and after assigning S.C.No.329/2010 it was made over for trial and disposal to the Court of II Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha. After a preliminary hearing, charge was framed against the appellant-accused for offences punishable under sections 449 and 302, IPC and it was read over and explained to him. The appellant pleaded not guilty. 3. The prosecution has examined 12 witnesses and exhibited 16 documents besides identifying MO 1 to MO 10. On closure of the evidence of the prosecution, the appellant-accused was examined under section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances put to him. Finding that the appellant-accused was not entitled to be acquitted under section 232 Cr.P.C, he was called upon to enter on his defence. The appellant got marked Exts.D1 to D3 case diary contradictions and besides the same he had not adduced any further evidence. After appreciating the evidence on record and considering the rival contentions, the trial court found the appellant-accused guilty of the offences punishable under sections 449 and 302, IPC and convicted and sentenced him as aforesaid. Hence, this appeal. 4. We have heard Smt. Suja T., the State Brief appointed to prosecute the appeal on behalf of the appellant and the learned Public Prosecutor. 5. The learned counsel appearing for the appellant contended that the evidence of PW8, the Secretary of Vellathooval Grama Panchayat who issued Ext.P6 would reveal that the shop in question wherein the incident occurred belonged to one Alikutty. 5. The learned counsel appearing for the appellant contended that the evidence of PW8, the Secretary of Vellathooval Grama Panchayat who issued Ext.P6 would reveal that the shop in question wherein the incident occurred belonged to one Alikutty. It is therefore, contended that the prosecution has not succeeded in proving that the deceased was legally in possession of the shop in question and further that for a considerably long period, prior to the date of occurrence, the appellant-accused used to stay in the said shop room during night. It is further contended that the appellant had been away to Kothamangalam and on his return, as usual, he went to the room to stay there and then he was pushed outside the room by the deceased and in the melee the deceased happened to fall on the piece of a broken glass bottle and sustained fatal injuries that caused his death. It is also contended that PWs 1 and 2 are none other than the brothers of the deceased and PW3 was his co-worker and hence, their interested testimonies ought not to have been relied on to enter conviction against him. The learned counsel for the appellant further submitted that all such facts were stated specifically in the statement additionally filed during the examination under section 313 Cr.P.C. In short, it is submitted that the prosecution had not brought the true picture before the court and that the judgment of conviction is the result of perverse appreciation of evidence. Per contra, the learned Public Prosecutor contended that the evidence of PWs 1 and 2 cannot be discarded on the ground that they are siblings of the deceased. So also the evidence of PW3 cannot be discarded on the ground that he was associated with the deceased and PWs 1 and 2. It is the contention that they have categorically deposed to the effect that by about 9 p.m. the accused came to the room which was in their possession on 24.3.2010 in an inebriated stage and PW1 as also the deceased asked him to go away from there. He left the place and thereafter came back at 9.30 p.m. armed with a soda bottle. According to him, he came inside the room and after breaking the bottle stabbed on the neck of the deceased Arumughan when he attempted to push the accused outside the room. He left the place and thereafter came back at 9.30 p.m. armed with a soda bottle. According to him, he came inside the room and after breaking the bottle stabbed on the neck of the deceased Arumughan when he attempted to push the accused outside the room. It is further contended that a conjoint reading of the oral testimonies of PWs 4 and 6 would undoubtedly reveal that the deceased and his brothers and co-workers were in authorised possession of the room in question. It is further contended that the evidence of PW10, the Doctor who conducted autopsy on the body of deceased Arumughan and issued Ext.P8 post mortem certificate, would reveal that the death of Arumughan was due to stab injury sustained on the neck. It is further contended that the trial court on proper appreciation of the evidence on record arrived at the correct conclusion regarding the culpability of the appellant and therefore, no appellate interference is called for. 6. Firstly, it is to be decided as to whether the death of Arumughan is homicidal or not. As noticed hereinbefore, PWIO conducted autopsy on the body of Arumughan and he issued Ext.P8 postmortem certificate noting the following injuries:- 1. Semicircular lacerated wound on left side of chin with sharp margines 2.3cm in diameter, bone deep. 2. Incised wound on middle of left collar bone 2 cm, vertical bone deep. 3. Incised wound on left side of neck 7x2.2 cm vertical with two skin tags are at right edge and one at upper end. The wound directed downwards and towards right for a total minimum depth of 7cm. The wound cut the skin, subcutaneous tissues, the lower end of sternojugular vein severed and the sympathetic trunk cut and reached up to prevertebral facia at 6th cervical vertebrae. 7. Evidently, PWIO, the Doctor opined that Arumughan died due to stab injury sustained on the neck viz., injury No.3 and the said fact was recorded in Ext.P8 postmortem certificate as well. True that PWIO did not specifically depose that the injuries noted in Ext.P8 postmortem certificate, either jointly or independently, are sufficient in the ordinary course of nature to cause death. At the same time, PW10 deposed to the effect that Arumughan died due to the injury sustained on the neck. It is so stated in Ext.P8 as well. True that PWIO did not specifically depose that the injuries noted in Ext.P8 postmortem certificate, either jointly or independently, are sufficient in the ordinary course of nature to cause death. At the same time, PW10 deposed to the effect that Arumughan died due to the injury sustained on the neck. It is so stated in Ext.P8 as well. There can be no doubt that even in the absence of any such specific statement as to whether such injuries are sufficient in the ordinary course of nature to cause death by the doctor, taking note of the injuries noted in the post mortem certificate, this Court could certainly arrive at a conclusion whether they were sufficient in the ordinary course of nature to cause death. In fact, the nature of the death as homicidal was not disputed before us. Evidently, the fatal injury viz., injury No.3 was on the left side of the neck having the size of 7x2.2 cm vertical with 2 skin stages at right edge and one at upper end and the wound was directed downwards and towards right for a total minimum depth of 7 cms. The skin, subcutaneous tissues, lower end of sternonedomastoid and the common carotid artery on left side were cut. The jugular vein was severed and the sympathetic trunk was cut and it reached upto prevertebral acia at 6th carvical vertebrae. Jugular vein is one of the large veins on either side of the neck that carry impure blood from the brain, face and neck to the heart. As per the evidence of PW10 the said injury was a penetrating one and it damaged the internal organs as well. The evidence of PW10 would reveal that though he had not specifically stated injury No.3 was sufficient in the ordinary course of nature to cause death he had categorically stated that Arumughan died due to the injury sustained on the neck. The very purpose of expert opinion is to assist primarily the court to arrive at a final conclusion. In view of the nature of injury No.3 as noted above and the evidence of PW10 with Ext.P8 postmortem certificate we find absolutely no reason to disagree with the opinion of PW10 that the death of Arumughan occurred due to injury sustained on the neck and according to us, the said injury was sufficient in the ordinary course of nature to cause death. In such circumstances, there can be no doubt that the death of Arumughan was culpable homicide. 8. The next question is who is the culprit? The evidence on record would undoubtedly show that there is common case for the prosecution and the appellant on certain aspects. The fact that the injury No.3 which caused the death of Arumughan had occurred inside the room in question and the incident occurred when the deceased attempted to oust the appellant who entered the room are not in dispute. So also, when the appellant entered inside several persons including the deceased were inside. The case of the prosecution is that the accused-appellant entered into the room which was in the authorised possession of the deceased, his brothers and other workers, on 24.3.2010 firstly at 9 p.m. and on being turned out he went back and then armed with a soda bottle he came back at 9.30 p.m. and after entering the room he broke the bottle and stabbed at the neck of the deceased. It is evident that the defence version is also to the effect that the incident occurred inside the shop room. This is also specifically stated in the statement additionally filed by the appellant-accused. It is further stated therein thus :- Other Language 9. When he entered the room, he found several persons inside it and consuming liquor. He again attempted to get inside and then four persons beat him and consequently he fell down. The deceased took a bottle and beat him. He fell down and the bottle was broken. The deceased attempted to hit him with broken bottle and there occurred a melee and in the melee, himself and the deceased fell down on the floor and at that time, with the broken bottle held by the deceased hit upon the neck. The others in the company of the deceased beat him and tied him inside with a rope. The police came after a few hours and later, took him to the police station. It is in the said circumstances that we observed hereinbefore that there is commonness in the case of the appellant and the prosecution. 10. Now, we will advert to the evidence on record. The police came after a few hours and later, took him to the police station. It is in the said circumstances that we observed hereinbefore that there is commonness in the case of the appellant and the prosecution. 10. Now, we will advert to the evidence on record. The oral evidence of PWs 1 to 3, the eye witnesses, is a pointer to the crucial fact that the appellant-accused criminally trespassed into the place of occurrence which is inside the room in their authorised possession along with the deceased. Their presence need not be doubted as even going by the appellant, when he entered into the said room several persons were there. It is also to be noted even the suggestions to put to the witnesses during their cross-examination, were to the effect that the appellant-accused was manhandled by the deceased, PW1 to PW3 and the others who were inside the said room. According to PW1 to PW3, at about 9 p.m., the appellant-accused came there in an inebriated stage demanding to be accommodated there. They would further depose that on being pushed outside and asked to go away he left the place, but returned at about 9.30 p.m., armed with a soda bottle. Their further evidence in unison is to the effect that the appellant-accused, on his entry inside the room on the second occasion at about 9.30 p.m., was attempted to be pushed outside by the deceased Arumughan and agitated by anger, the appellant broke the soda bottle and inflicted injuries on deceased Arumughan. The appellant-accused raised the contention that no credence could be given to the oral testimonies of PWs 1 to 3 as they are either related or associated with the deceased. True that PWs 1 and 2 are the siblings of the deceased Arumughan. At the same time, being a close relative of the deceased can never be a reason for discrediting the testimony of witnesses. The said position is settled by the Hon'ble Apex Court in Natthu v. State of U.P. ( AIR 1977 SC 2096 ). Considering the fact that PW3 who was a worker residing along with the deceased and PWs 1 and 2 gave evidence which is consistent with the versions of PWs 1 and 2, we find no reason to disbelieve PW3 on the ground of his being an associate of the deceased. Considering the fact that PW3 who was a worker residing along with the deceased and PWs 1 and 2 gave evidence which is consistent with the versions of PWs 1 and 2, we find no reason to disbelieve PW3 on the ground of his being an associate of the deceased. Thus, the oral testimonies of PWs 1 to 3 as already noticed are to the effect that they along with the deceased and some others were in authorised occupation of the shop room at the relevant point of time. When that be so, there is nothing unusual in their presence in that room and therefore, they can only be natural witnesses as regards the incident in question. Their version regarding occupation of the room gained support from the evidence of PWs 5 and 6. PWS is the owner of the shop room in question. He would categorically depose that he had entrusted PW6 to look after it, but no permission was granted to give it on lease. At the same time, he would admit the fact that permission was sought for, by PW6 for giving it for residential purpose to certain persons from Tamilnadu. PW6, in turn, deposed that he gave consent to the deceased, PWs 1 and 2 and some others to occupy the said room. Thus, the evidence of PWs 5 and 6 would fortify the versions of PWs 1 to 3 that they along with the deceased were in authorised possession of the shop room in question during the relevant point of time. In such circumstances, taking into account the indisputable and undisputed fact that the incident occurred inside the shop room and even as per the defence case, the deceased along with several others were inside the said room when the appellant-accused entered there it can only be said that the deceased, PWs 1 to 3 and some others were occupying the room during the relevant period and that the appellant-accused was the trespasser into the said room. It is pertinent to note that though PWs 1 to 3, 5 and 6 were cross-examined on behalf of the appellant-accused, nothing could be brought out to make them untrustworthy. It is pertinent to note that though PWs 1 to 3, 5 and 6 were cross-examined on behalf of the appellant-accused, nothing could be brought out to make them untrustworthy. The evidence of PWs 1 to 3 would undoubtedly reveal that they were inside the shop room and the appellant came there with a demand to be accommodated there firstly at 9 p.m. and thereafter at 9.30 p.m. on 24.3.2010 and on the second occasion, he came there armed with a soda bottle. 11. The very case of the defence that the appellant went there on that day at about that hour, has also to be taken into account in this context. Taking into account all such circumstances it can be safely held that the appellant had criminally trespassed into the shop room and stabbed the deceased who was inside the shop room and thereby committed house trespass. The learned counsel for the appellant relied on the evidence of PW8 to contend that going by Ext.P6, the shop room was in the name of one Alikutty. But, the evidence of PW5 would reveal that he purchased the property from the said Alikutty. We are of the considered view that in the light of the provisions under section 442, IPC, when a person enters upon the property in possession of another person, the culpability of such person viz., whether he is guilty of criminal trespass, could be considered without reference to the question to whom the title of the building in question belongs as in view of the provisions thereunder what matters is the possession and not the ownership of the property. A perusal of explanation to section 442, IPC leaves no room or no doubt regarding the situation under which a person could be treated to have committed house trespass. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house trespass going by the explanation thereunder. In this case, the evidence of PWs 1 to 3 would establish that the appellant-accused entered into the room which was in their possession along with the deceased and at a time when they were inside the said room. In this case, the evidence of PWs 1 to 3 would establish that the appellant-accused entered into the room which was in their possession along with the deceased and at a time when they were inside the said room. As noticed hereinbefore, the accused himself in his statement filed during the examination under section 313, Cr.P.C would state the fact that by the time he entered the room the deceased and several others were there and going by the same, the deceased sustained injuries while he was inside the said room. In this context, it is also pertinent to note that the appellant-accused got no case that he was put in possession of the room by its owner or anybody who got authorisation from him. Evidently, the appellant was found guilty of the offence punishable under section 449, IPC and he was sentenced thereunder. No doubt, to justify a conviction under section 449 there must be a clear proof of the design to commit murder or any other like offence punishable with death. In the contextual situation the decision of the Hon'ble Apex Court in Matiulla Sheikh v. State of W.B. ( AIR 1965 SC 132 ) assumes relevance. In the said decision, the Hon'ble Apex Court held that an act could be said to be committed 'in order to the committing of an offence' even though the offence might not be completed. The words 'in order to' have been used to mean 'with the purpose of, it was held. It was further held that if the purpose in committing the house trespass is the commission of an offence punishable with death, the house trespass would become punishable under section 449, IPC and hence, the fact that the murder was not actually committed would not affect the applicability of section 449, IPC. 12. The evidence of PWs 1 to 3, as already noticed hereinbefore, would reveal that the appellant came to the shop in question which was then in possession of PWs 1 to 3 along with deceased and some others at about 9 p.m. on 24.3.2010 demanding for his accommodation thereon and on being refused, he returned from there and subsequently, came there armed with soda bottle at 9.30 p.m. He entered into the shop room armed with a soda bottle and thereafter broke the bottle and using the broken piece, stabbed Arumughan including on his neck. The version of PWs 1 to 3 in that regard was already found by us as creditworthy. The evidence of PW10 with Ext.P8 would reveal that Arumughan died due to injuries sustained on the neck. PW10 would further depose that the stab injury could be caused by a weapon like MO1. In such circumstances, it is evident that the occular evidence of record, especially, the statement additionally filed by the accused would reveal that he was under intoxication at the time of occurrence. The question is whether the fact that he was under intoxication would have any effect in deciding the culpability of the accused-appellant. While considering the said question raised by the learned counsel for the appellant in the light of the evidence already expatiated it will not be inappropriate to refer to a decision of the Apex Court in Basdev v. State of Pepsu ( AIR 1956 SC 488 ). In that case, the accused, deceased and some others were about to take a mid day meal. Only some of them had settled down in their seats and accused who was under intoxication asked the deceased to step aside a little so that he might occupy the convenient seat. However, the deceased did not move. Thereupon, the accused whipped out a pistol and shot the deceased in the abdomen. The injury proved to be fatal. The Hon'ble Apex Court found that the accused was under the influence of drink and he was not so much under its influence that his mind was so obscured by the drink that there was incapacity to him to form the required intention and in such circumstances it was held that he was guilty of murder. In this case, the appellant-accused came to the shop at 9 p.m. and demanded to be accommodated thereon and on being refused, he left the place and thereafter returned there armed with a soda bottle and after entering into the room in which deceased and others were remaining, broke the soda bottle and with the broken piece inflicted injuries including an injury on the neck of the deceased which proved to be fatal. In such circumstances, when it is found that the appellant who came there and left the place and thereafter returned to the place of occurrence armed with a soda bottle and using that bottle he inflicted a fatal injury it cannot be said that he was under the influence of alcohol and was in such a stage that there was incapacity to him to form the required intention. The evidence on record would further reveal that in this case, as explained hereinbefore, the appellant is not entitled to get the benefit either under section 85 or 86, IPC. The appellant could not establish that any of the exceptions to section 300, IPC attracts in this case. In short, we do not find any reason to disagree with the finding of the trial court that the appellant had committed the offence punishable under section 302, IPC. Accordingly, the finding of the trial court that the appellant is guilty of the offence under section 300, IPC and his conviction therefor, are liable to be confirmed. When that be so, in the light of the earlier finding that the appellant has committed house trespass and once it is found that he has house trespassed with the intention to commit an offence and taking into account the fact that he has not only attempted to commit an offence but the act was also accomplished and the appellant has caused the death of Arumughan, the finding of the learned Sessions Judge that the appellant was guilty of the offence punishable under section 449, IPC also calls for no appellate interference. The long and short of the discussions is that there is absolutely no reason for interfering with the finding of guilty, conviction entered against the appellant by the trial court under section 302, IPC as also under section 449, IPC. Taking into account the fact that the appellant on being found guilty was awarded only a lesser sentence, we do not find any reason to interfere with the sentence imposed on him. The sentence imposed under section 449, IPC also warrants no interference. Consequently, the conviction for the aforesaid offences and the sentences imposed therefor, are confirmed. In the result, the appeal must fail and accordingly, it is dismissed.