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2017 DIGILAW 724 (KER)

RAJAN v. STATE OF KERALA

2017-04-11

P.UBAID

body2017
JUDGMENT : The appellant herein challenges the conviction and sentence against him under Section 304 (Part-I) of the Indian Penal Code in S.C 817/2009 of the Court of Session, Alappuzha. 2. The prosecution case is that, at about 8 p.m. on 9.10.2005 at the canal puramboke near the house of the accused, he stabbed his close relative Ramesan to death with a knife, due to some previous enmity in connection with the destruction of the telephone cable to the house of the said Ramesan. At about 2.30 a.m. on 10.10.2005, Ratheesan, the brother of the deceased, gave first information statement to the Police, and on the basis of this statement, the Police registered the crime under Section 302 I.P.C. The deceased was first taken to the local hospital at Haripad, and was later shifted to the Medical College Hospital, Alappuzha where he breathed his last within a few hours. The material witnesses in this case are the relatives of both the parties. After thorough investigation, the Police submitted final report before the Judicial First Class Magistrate's Court-I, Haripad under Section 302 I.P.C. After complying with the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session from where it was made over to the Additional Sessions Court (Adhoc), Mavelikara for trial and disposal. 3. The accused pleaded not guilty to the charge framed against him by the trial court under Section 302 I.P.C and claimed to be tried. The prosecution examined 19 witnesses and proved Exts.P1 to P18 documents. The MO1 to MO7 properties, including the weapon of offence, were also identified during trial. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that deceased Ramesan in fact sustained injuries accidentally when he fell in the canal during a scuffle and wording quarrel that ensued in connection with the destruction of the telephone cable. The prosecution would allege that Ramesan was stabbed by the accused while he was trying to save his mother who fell in the canal; whereas the defence contention is that it was deceased Ramesan, who actually fell in the canal, and he died due to the injuries sustained in the said fall. The accused did not adduce any oral evidence in defence. However, Exts.D1 and D2 documents were marked. The accused did not adduce any oral evidence in defence. However, Exts.D1 and D2 documents were marked. These two documents do not contain anything material to probabilise the defence case or to disprove the prosecution case in any manner. 4. On an appreciation of the evidence, the trial court found the accused not guilty under Section 302 I.P.C, but found him guilty under the first part of Section 304 I.P.C as a case of culpable homicide not amounting to murder. On conviction thereunder, he was sentenced to undergo rigorous imprisonment for seven years, and to pay a fine of Rs.3000/- by judgment dated 25.7.2012. Aggrieved by the judgment of conviction, the accused has come up in appeal. When this appeal came up for hearing, the learned counsel for the appellant submitted that there is absolutely no satisfactory evidence to prove a case of culpable homicide not amounting to murder, punishable under the first part of Section 304 I.P.C or even under the second part of Section 304 I.P.C, and that deceased Ramesan in fact sustained injuries when he fell in the canal during the scuffle that ensued between the parties in connection with another dispute. The learned counsel also submitted that if at all the evidence of the material witnesses is believable to any extent, what is revealed and proved is only a case of simple assault. On the other hand, the learned Public Prosecutor submitted that Ramesan died due to the fatal injury inflicted by the accused with a knife on his neck, and the medical evidence well proves that the said injury was the cause of death. 5. On a perusal of the entire materials, and on an examination of the entire evidence, I find that the cause of death proved by definite medical evidence is the injury inflicted on the neck of the deceased by the accused with a knife, and that it will have to be further examined whether the said injury was inflicted with the knowledge of consequence, if not with intention to cause death and whether the conviction can in fact be under the first part of Section 304 I.P.C or only under the second part of Section 304 I.P.C. 6. Of the 19 witnesses examined by the prosecution, PW1 is the brother of the deceased, PW2 is his mother, PW3 is a cousin of the deceased, and PW4 is the paternal uncle of the deceased. He is also the brother-in-law of the accused. PW1 to PW4 are the eye witnesses examined by the prosecution to prove the incident. The accused is the husband of the aunt (paternal) of the deceased. Thus, all the main witnesses are closely related to the accused also. It is here, the believability and acceptability of the evidence given by the material witnesses assumes importance in the process of evaluation and appreciation of evidence. The evidence of PW5 to PW8 need not be discussed much because they are only witnesses, who either took the deceased to the hospital or witnessed to the inquest or attested the mahazar. PW9 is the Doctor, who conducted postmortem examination on the body of the deceased, PW10 is the scientific assistant who collected some blood stained materials from the place of incident, PW16 is the Doctor who examined the deceased initially at the local hospital, PW18 is the Circle Inspector who investigated the case and PW19 is the Doctor who had attended the deceased initially at the Medical College Hospital. The evidence of PW11 to PW14 is only formal as persons, who either attested the scene mahazar or received the dead body from the hospital, or the K.S.E.B official, who issued a certificate to the effect that there was no power of failure at the locality at the time of the alleged incident. The evidence of these witnesses need not be discussed much. 7. Before going to the ocular evidence, let me see what is the medical evidence proving the cause of death. PW9, the Doctor who conducted postmortem examination, has given evidence regarding the ante-mortem injuries found on the body of Ramesan on examination, and also regarding the cause of death detected by him on post-mortem examination. The Ext.P4 post-mortem certificate contains the details of the ante-mortem injuries noted by PW9. Prominent among the injuries is a penetrating incised wound 2.8x0.5 c.ms oblique in nature, on the left half of the front of the neck, with its inner lower blunt end 4.5 c.ms outer to midline, and 7 cms below the jaw bones. Swelling 12x9x2 c.m was also found around the injury. Prominent among the injuries is a penetrating incised wound 2.8x0.5 c.ms oblique in nature, on the left half of the front of the neck, with its inner lower blunt end 4.5 c.ms outer to midline, and 7 cms below the jaw bones. Swelling 12x9x2 c.m was also found around the injury. The said injury had cut through the stap muscles of neck, making a partial cut in the left internal jugular vein, and a partial cut in the back wall of esophagus, further cutting the right subclavian artery. The stab had entered the right pleural cavity through the thorasic inlet. The wound was seen directed downwards, backwards and to the right for a total minimum depth of 9 c.ms. The right lung was seen partially collapsed. In the post-mortem certificate, and also in evidence, the Doctor affirmed and stated that the cause of death was the penetrating incised wound noted as No.1 in the post-mortem certificate. When cross-examined by the defence, the Doctor ruled out the possibility of such an injury being caused accidentally in a fall or due to contact with the projecting part of an iron rod. The Doctor affirmed that such an injury is possible only with a sharp weapon, and stated that it is possible with a weapon like MO1 knife. Thus, the defence could not bring out anything in the cross-examination of PW1 to probabilise, that the fatal injury which led to death was somehow caused accidentally, or that it was not voluntarily caused by any person. 8. PW19 is the Doctor, who initially attended the deceased at the Medical College Hospital, Alappuzha. The deceased was first taken to the Government Hospital, Haripad from where he was referred to the Medical College Hospital. At the Government Hospital, he was attended by PW16. Finding that the injuries are serious, this Doctor referred the patient to the Medical College Hospital after giving some emergency treatment. Of course, it is true that a case of assault is not seen recorded in the hospital records including the Ext.P10 certificate. It is not known who gave information at the hospital. There is no doubt that the deceased was not in a condition to give the details because he was in a very critical state, with the fatal injury sustained on the neck. He was taken to the hospital by some persons of the locality. It is not known who gave information at the hospital. There is no doubt that the deceased was not in a condition to give the details because he was in a very critical state, with the fatal injury sustained on the neck. He was taken to the hospital by some persons of the locality. Just because, this is recorded as a case of fall in the hospital records, the court cannot come to a conclusion that this is not a case of culpable homicide, when the very material witnesses who are related to both sides, have affirmed in evidence that this is a case of culpable homicide. Whether this is a case of murder, or whether this is a case of culpable homicide, not amounting to murder is not the matter to be spoken to by the witnesses. They can only give evidence regarding the actual incident that happened, and it is for the court to decide on an appreciation and evaluation of the entire evidence, whether this is in fact a case of murder or only a case of culpable homicide coming under the first part or the second part of Section 304 I.P.C. 9. The evidence given by PW19 shows that when an emergent process for an operation was going on, the deceased developed a cardiac attack. It is pertinent to note that no definite question was put to this witness in cross-examination regarding the said caridac attack that developed during the operation procedure, as to whether the actual cause of death was the said cardiac attack, or the fatal injury sustained on the neck. This is a very important area where the defence failed to elicit some important aspect. In such a circumstance where the defence has not raised any serious question or issue regarding the cardiac attack that developed during the operation process, the court will have to accept the undiscredited evidence given by PW9 that Ramesan died due to the fatal injury sustained on the neck. Thus, on an appreciation of the entire medical evidence, I find that Ramesan died due to the fatal injury sustained on the neck, described as the prominent injury No.1 in the Ext.P4 post-mortem certificate. 10. Thus, on an appreciation of the entire medical evidence, I find that Ramesan died due to the fatal injury sustained on the neck, described as the prominent injury No.1 in the Ext.P4 post-mortem certificate. 10. Now the question is whether the fatal injury was inflicted by the accused in this case, and also whether the act of offence will come under the first part of Section 304, or under the second part. Let me see what is the evidence given by the material witnesses examined as PW1 to PW4. None of these witnesses can be branded as interested witness because they are equally related to the accused also. PW1 is the brother of the deceased and PW2 is his mother. It was submitted that they are the most interested witnesses in this case, and so their evidence cannot be believed without independent corroboration. Of course, it is true that they are interested, and they are bound to be interested when PW1 lost his direct brother and PW2 lost her son. If their evidence is believable, they cannot be mercilessly branded as interested witnesses. Their evidence is well corroborated on all materials particulars by PW3 and PW4. Of course, PW3 is a cousin of the deceased, but he is related to the accused also. PW4 is the brother-in-law of the accused. He is the direct brother of the father of the deceased. PW4, who is more related to the accused, than PW3, has described the actual incident, and he is definite in evidence that Ramesan died due to the neck injury inflicted by the accused with a knife during a scuffle that ensued there in connection with some other dispute. The defence has no explanation why PW4 should give any false evidence against the accused, or why he should show special interest in the prosecution. Anyway, before discussing the evidence of the two witnesses, who will have to be treated as independent witnesses in view of their relationship to both sides, let me see what is the evidence given by the brother of the deceased and the mother of the deceased. 11. The main witnesses in this case, who witnessed the incident are PW1 to PW4. Of them, PW1 is the first informant. PW4 is the brother-in-law of the accused. The wife of the accused is the sister of PW4. 11. The main witnesses in this case, who witnessed the incident are PW1 to PW4. Of them, PW1 is the first informant. PW4 is the brother-in-law of the accused. The wife of the accused is the sister of PW4. There is nothing to show that PW3 and PW4 had any sort of enmity, or that they had any reason to give any false evidence against the accused. All the witnesses are consistent that the accused stabbed Ramesan with the MO1 knife during a scuffle that ensued between the parties in connection with an earlier incident, wherein, the telephone cable to the house of PW2 was damaged by the accused. The house of the accused is not far away from that of the deceased. PW3 and PW4 are also nearby residents. PW3 was near the scene of incident, and PW4 was at his residence. PW4 came to the scene on hearing the noise of the scuffle. All are consistent that during the said scuffle, PW2 fell in the canal, and when the deceased tried to save her, the accused, infuriated by the words of PW2, stabbed Ramesan on his neck with a knife. 12. PW1 and PW2 are consistent that the accused came there at about 8 p.m. and picked up a quarrel in connection with the earlier incident, wherein, the telephone cable was damaged by him. Prior to the incident also, on the same day, the accused had come to pick up a quarrel, but he was sent back to his house by PW1 and others. He came there again at about 8 p.m. with a knife in his hands and picked up a quarrel. The house of the deceased is just near the canal. The house of the accused is also very near. In the scuffle that ensued, PW2 fell in the canal, and at that time she blamed the accused, that he was responsible for it. Just then, Ramesan tried to save his mother, and at that time, the infuriated accused rushed towards Ramesan and stabbed on his neck with a knife. This is the consistent version given by PW1 and PW2 regarding the incident. These two witnesses are well corroborated on all material particulars by PW3 and PW4. 13. The evidence of PW3 and PW4 is that they had clearly seen the incident wherein, the accused stabbed on the neck of Ramesan with a knife. This is the consistent version given by PW1 and PW2 regarding the incident. These two witnesses are well corroborated on all material particulars by PW3 and PW4. 13. The evidence of PW3 and PW4 is that they had clearly seen the incident wherein, the accused stabbed on the neck of Ramesan with a knife. The material witnesses also identified the MO1 knife during trial. These two witnesses are definite and consistent that the unfortunate incident happened only because the accused came there to pick up a quarrel with Ramesan and others, and when Ramesan tried to save his mother, who fell in the canal, the accused stabbed on his neck with a knife. It appears that when PW2 fell in the canal she blamed the accused that he was responsible for it. These words of PW2 probably infuriated him, and as the quarrel was in fact between him and Ramesan, the accused rushed towards Ramesan, who was holding his mother at the side of the canal, and when Ramesan was not free with his hands, while holding his mother, the accused stabbed on his neck with a knife. Though PW1 to PW4 were extensively cross-examined by the defence, nothing could be brought out to discredit their evidence. Of course, it is true that PW13 examined to prove the recovery of the MO1 knife under Section 27 of the Evidence Act turned hostile. But the recovery is proved by the Circle Inspector, who recovered it as part of investigation. A material object is only a piece of evidence. Even in cases where the material object is not produced or proved, the court can find the accused guilty and convict him, if the ocular evidence regarding the actual incident is clear, convincing and satisfactory. Here is a case where PW1 to PW4 are definite and consistent regarding the way in which the incident happened. All are consistent that Ramesan died due to the injury inflicted on his neck by the accused with a knife. All are consistent that the accused stabbed on the neck of Ramesan while he was trying to save his mother who fell in the canal. All the witnesses are consistent that the unfortunate incident happened in connection with an earlier incident where the telephone connection to the house of PW2 was damaged by the accused. All are consistent that the accused stabbed on the neck of Ramesan while he was trying to save his mother who fell in the canal. All the witnesses are consistent that the unfortunate incident happened in connection with an earlier incident where the telephone connection to the house of PW2 was damaged by the accused. These are the factual aspects clearly brought out by the evidence of PW1 to PW4. Of course, it is true that some minor inconsistencies are there. But I find that none of the witnesses had any special reason to give any false evidence against the accused. This is not a case where any of the witnesses can be branded as interested witnesses. PW3 and PW4 are related to both sides, and their evidence is clear and convincing regarding the incident. When these two witnesses are definite and consistent that Ramesan died due to the injury inflicted by the accused on his neck with a knife, the court cannot at all brand PW1 and PW2 as interested witnesses. Their evidence is fully consistent with the evidence given by PW3 and PW4. It does not matter whether there is blood stain on the knife. The Doctor has explained that in certain circumstances where the knife happened to rest, there is possibility of the stains of blood being erased. Here the MO1 knife was recovered after a few days. All the witnesses are definite and consistent that Ramesan was stabbed by the accused with a knife. When the ocular evidence is fool-proof, it is quite immaterial that the witnesses are not 100% sure whether MO1 is exactly the knife used by the accused to inflict the fatal injury. 14. I find no reason to disbelieve PW1 to PW4, who have corroborated one another, and who are consistent on all the material particulars. Thus, I find that the case on facts stands well proved by their evidence that the death of Ramesan was caused by the accused in this case by inflicting a fatal injury on his neck with a knife. 15. Now the question is whether the offence proved in this case will come under the first part of Section 304 I.P.C. or under the second part. Evidence well satisfies the court that the accused had no intention to kill Ramesan when he inflicted an injury on his neck. 15. Now the question is whether the offence proved in this case will come under the first part of Section 304 I.P.C. or under the second part. Evidence well satisfies the court that the accused had no intention to kill Ramesan when he inflicted an injury on his neck. It appears that there was some provocation during the scuffle that ensued, but it is a fact that the quarrel was in fact caused by the accused, and the scuffle that ensued was also at his instance. I find that the accused will not get any justification in this case for the infliction of fatal injury, that he happened to inflict it during a scuffle. He inflicted the injury with the full knowledge of consequence that such an injury inflicted on the neck may cause death. 16. The accused has projected a defence that this case was falsely foisted against him due to some previous enmity. His defence is that deceased Ramesan had an illicit affair with a lady, but later she abandoned him and joined the son of the accused. This had resulted in some dispute between the families, and Remesan had even made an attempt to commit suicide. According to the accused, the said enmity, that the girl who once loved Ramesan crossed over to the other side and started living with the son of the accused, was the reason for the scuffle that ensued at the place of incident. What Ramesan sustained is an incised injury on the neck. Such an injury cannot be caused by a projecting iron rod in the canal. The description of injury and its direction inside the body will make it amply clear that the injury was inflicted with a sharp edged weapon. A projecting iron rod will not cause such an injury. 17. The defence case stands not in any manner probabilised that Ramesan sustained injury when he fell in the canal, or that this case was falsely foisted against him due to some previous enmity. On the other hand, it stands clearly proved by convincing and satisfactory evidence that Ramesan died due to the injury inflicted by the accused on his neck with a knife. 18. Of course, I find that the accused had no intention to kill Ramesan when he inflicted injury on his neck with a knife. On the other hand, it stands clearly proved by convincing and satisfactory evidence that Ramesan died due to the injury inflicted by the accused on his neck with a knife. 18. Of course, I find that the accused had no intention to kill Ramesan when he inflicted injury on his neck with a knife. There is nothing to show that the accused came at the scene of incident with the object of killing anybody, though he had a knife in his hands. In the above circumstances, I find that what is actually applicable here is the second part of Section 304 I.P.C. What I find is that Ramesan died due to the injury inflicted by the accused on his neck with the knowledge of consequence that such an injury inflicted with such a weapon may cause death in the ordinary circumstances. Thus, I find that the conviction in this case made by the court below under the first part of Section 304 I.P.C, will have to be altered to one under the second part of Section 304 I.P.C. Subject to this modification, the conviction will have to be confirmed in appeal. 19. The sentence imposed by the trial court is rigorous imprisonment for seven years and a fine of Rs.3000/-. The amount of fine is very very meagre. Anyway, when the conviction is being altered, the sentence also will have to be reasonably modified and reduced. The age of the accused reported at the time of incident is 58 years. Now he must be aged around 65 years. There is nothing to show that the accused is a person of bad antecedents. The parties are close relatives. They had one reason or the other to be not in good terms. The alleged incident happened in an unfortunate situation. This is not a case of calculated murder, and this is not a case where the accused inflicted injury with the object of causing death. In the above factual situation, I find that rigorous imprisonment for four years under the second part of Section 304 I.P.C. will be the adequate sentence. In the result, this appeal is allowed in part. The conviction against the appellant under Section 304 I.P.C. in S.C 817/2009 of the court below is confirmed subject to the modification that the conviction shall be under the second part of Section 304 I.P.C, and it stands altered accordingly. In the result, this appeal is allowed in part. The conviction against the appellant under Section 304 I.P.C. in S.C 817/2009 of the court below is confirmed subject to the modification that the conviction shall be under the second part of Section 304 I.P.C, and it stands altered accordingly. Consequently, the jail sentence imposed by the trial court will also stand reduced to rigorous imprisonment for four years under the second part of Section 304 I.P.C. The fine sentence imposed by the court below with the default sentence thereon, is maintained. The appellant will get the benefit of set off as already ordered by the trial court.