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2018 DIGILAW 628 (KER)

KUNJU v. STATE OF KERALA

2018-08-01

A.M.SHAFFIQUE, P.SOMARAJAN

body2018
JUDGMENT : A.M. SHAFFIQUE, J. 1. The appeal is filed by the first accused in SC No.253/2008 challenging judgment dated 3/5/2013 by which he was convicted for offence under section 302 and 307 I.P.C. He is sentenced to undergo imprisonment for life and to pay a fine of Rs. 1 lakhs for the offence under section 302 of I.P.C and rigorous imprisonment for a period of 7 years and a fine of Rs. 50,000/- for the offence punishable under section 307 of I.P.C. with default sentence of simple imprisonment for two years. There were two accused in the case and the trial Court had acquitted the second accused. 2. According to the prosecution, an altercation took place between PW1 and PW2 on the one hand and the accused along with another person on the other hand at about 8 p.m on 25/12/1998. When PW1 and PW2 went back to their house after the altercation, it was realised that PW2's gold chain was missing. They believed that the accused have taken the gold chain and accordingly they along with their deceased brother-in-law Roy went in search of the accused. When they reached the house of one Eayannam Thomas, and proceeding on the basis that the accused would be there, Roy called the first accused. Immediately they came out of the house of Eayannam Thomas armed with chopper and a stone. Prosecution alleges that they had a common intention to cause death of the deceased. They attacked PWs 1 and 2 and deceased Roy. PW2 and Roy sustained grievous hurt and PW1 also sustained certain injuries. All of them were taken to Medical College Hospital, Kozhikode and on the way Roy succumbed to his injuries. 3. PW1 has given Ext.P1, FIS, on the basis of which investigation was conducted. After complying with the procedural formalities and after investigation into the crime, final report was submitted before the First Class Magistrate Court-II Sulthanbathery who committed the case to the Sessions Court, Wayanad. The Sessions Court framed charges which were denied by the accused. 4. To prove the prosecution case, they examined PW1 to PW23 and marked Exts.P1 to P26. MOs 1 to 11 were produced and identified. The defence relied upon Exts.D1 to D5 contradictions in the case diary. The Sessions Court framed charges which were denied by the accused. 4. To prove the prosecution case, they examined PW1 to PW23 and marked Exts.P1 to P26. MOs 1 to 11 were produced and identified. The defence relied upon Exts.D1 to D5 contradictions in the case diary. After giving an opportunity to explain the incriminating circumstances against the accused in terms of section 313 of Cr.P.C., 1973 Court found the first accused guilty for the offence of murder and attempt to murder and accordingly imposed sentence as stated above. 5. Learned counsel for the appellant argued that a case of culpable homicide amounting to murder had not arisen in the case. This is a case in which there was no pre-meditation to commit murder and the incident happened only when PW1, PW2 and the deceased came back to attack the accused. It was also contended that there is no evidence to prove the case set up by the prosecution and the evidence of PW1 and PW2 are not believable and there are several contradictions and omissions in their evidence by which the evidence has become uncredit-worthy. The learned counsel also challenged the recovery of weapons and the manner in which investigation had been conducted. 6. On the other hand, learned Public Prosecutor supported the judgment of the lower Court and contended that the evidence of PW1 and PW2 who were injured in the case by itself indicates that their evidence is believable and the contradictions pointed out are not sufficient enough to belie the prosecution case. 7. Before proceeding further, it would be useful to initially consider the manner in which Roy succumbed to injuries. PW8 is the Doctor who conducted post mortem examination and Ext.P7 is the postmortem report. The following were the ante-mortem injuries sustained by the deceased:- "1. Incised wound with contused margins 18x2 cms, extending from left ala of nose, root of nose, forehead, reaching right temporal area, curved, concavity towards right side. Back end was 6 cm above right ear at 1 o'clock position. Underneath the wound nasal bones, right frontal bone outer aspect, roof of right orbit were cut producing a defect 7x4 cm (oval). Durameter was also cut. Laceration of frontal lobe of brain right side 3x3x2 cm. Subarachnoid bleeding in thin film over entire cerebral hemisphere. 2. Back end was 6 cm above right ear at 1 o'clock position. Underneath the wound nasal bones, right frontal bone outer aspect, roof of right orbit were cut producing a defect 7x4 cm (oval). Durameter was also cut. Laceration of frontal lobe of brain right side 3x3x2 cm. Subarachnoid bleeding in thin film over entire cerebral hemisphere. 2. Incised wound 1.8x0.2cm oblique on forehead in midline, lower left end 3.5 cm above root of nose. Underneath the wound the outer table of frontal bone was cut chipping off a fragment 2.3x1cm. 3. Superficial incised wound 0.7x0.2 cm on left side of forehead, 2 cm outer to previous injury 2; 4. Incised wound 6.5x1 cm on top of head transversely placed, left lower edges 11 cm above ear, other end 1 cm to the right of midline. There was a cut on frontal bone 11 cm in front of coronal suture 5.5x0.7 cm. Inner table of bone was showing right depression to the cranial cavity. Durameter and brain beneath were normal; 5. Abrasion 1.5x0.3cm on let side of face, 1 cm below lower eyelid; 6. Incised wound 2x0.5cm muscle deep, vertical on right side of cheek, lower end rounded 0.7 cm outer to angle of mouth, upper end showed tailing upwards far a length of 1 cm; 7. Spot abrasion on top of left shoulder 7 cm outer to root of neck; 8. Spot abrasion 6 cm in front of injury No.7; 9. Abrasion 3.2x0.5 cm on left shoulder blade, 10 cm below top of shoulder, 11 cm to the left of midline; 10. Multiple contused abrasions over an area 11x5 cm on front of left knee; 11. Linear abrasion 3 cm long, on front of right leg, 7 cm above ankle. 12. Multiple contused abrasions over an area 7x6 cm on front of right knee; 13. Incised wound 12x5x4 cm, vertical on inner aspect of right upper arm, lower end at elbow. Underneath this injury muscles of upper arm cut near the elbow. No injury to the humerus; 14. Superficial, incised wound transverse 4.5x1 cm on front of right forearm 3.5 cm below elbow joint; 15. Linear abrasion 4 cm long oblique on front of right side of chest, lower outer end 4 cm above nipple and ; 16. Underneath this injury muscles of upper arm cut near the elbow. No injury to the humerus; 14. Superficial, incised wound transverse 4.5x1 cm on front of right forearm 3.5 cm below elbow joint; 15. Linear abrasion 4 cm long oblique on front of right side of chest, lower outer end 4 cm above nipple and ; 16. Incised wound muscle deep 2x0.5 cm transverse on back of right side of chest, 7 cm right of midline and 34 cm below top of shoulder." The Doctor deposed that the deceased succumbed to injuries due to the cut injuries he sustained on his head and face. 8. PW13 is the Doctor who treated PW2 and Ext.P13 is the wound certificate. The following are the injuries sustained by PW2. "1. Stellate shaped incised looking lacerated wound scalp 15x10 cm with contusion scalp with underlying fracture skull; 2. 'C' shaped incised wound temporal region 10x2 cm; 3. Incised wound below left eye 5x2 cm: 4. Lacerated wound near left angle of mouth 5x3 cm; 5. Lacerated wound left side of neck 15x3 cm; 6. Incised wound right side of cheek 5x1 cm. 7. Lacerated wound right pivina 3x1 cm." 9. PW16 is the neighbour of PWs 1 and 2 and PW19 is their father. PW16 has deposed that PW19 called him and they together had taken the injured to the hospital. Initially they took them to Priya Hospital, Mananthavady and thereafter to the Government Hospital, Sulthanbathery who advised them to be taken to the Medical College Hospital, Kozhikode. The Doctor examined Roy at Medical College Hospital and he was found dead. PW19, father of PWs 1 and 2 had proceeded to the scene of occurrence when he had come to know that PWs 1 and 2 along with Roy had gone in search of the accused. When he was about to reach the scene of occurrence, he saw PW1 come running who informed that they were attacked by accused and others fell down at the scene of occurrence. PW19 thereafter went to the scene, and with the help of PW16, they were taken to the hospital. 10. It is therefore rather clear from the aforesaid evidence that Roy died on account of the injury sustained by him on the fateful day and PW2 also suffered serious injuries as evident from the wound certificate. 11. Learned counsel for the defence raised a few contentions. 10. It is therefore rather clear from the aforesaid evidence that Roy died on account of the injury sustained by him on the fateful day and PW2 also suffered serious injuries as evident from the wound certificate. 11. Learned counsel for the defence raised a few contentions. One contention is that the evidence of the eye witnesses are not believable and there are several contradictions in their evidence especially taking into account the evidence tendered by the Doctor. Another contention urged is that the aggressors were not the accused. Yet another contention urged is that there is no legal evidence to prove that the deceased sustained injuries in the manner as alleged by the prosecution. Further, the recovery effected by the investigating officer is not in accordance with the statutory procedure. It is also contended that the cause of death is not as alleged by the prosecution. 12. Before proceeding further, it will be useful to refer to the evidence adduced by the prosecution. PW1 has given the FI statement. He was also injured in the incident. He is the brother of PW2 and brother-in-law of deceased Roy. He deposed regarding the altercation and scuffle between the two groups and that people intervened and separated them. PW2 has lost one teeth in the said scuffle. He thereafter deposed regarding the loss of gold chain of PW2 and they proceeded in two motorcycles towards the house of accused. En-route they reached the house of Eayannam Thomas. When Roy called the name of the first accused, accused 1 and 2 came running by carrying a chopper and a stone and PW1 was hit by a stone by the 2nd accused. First accused brandished the chopper against Roy. Roy moved backwards. 2nd accused caught hold of Roy and first accused hit Roy on his head and hand with the chopper. Roy fell down. PW2 attempted to save Roy and first accused attacked him also. 2nd accused caught hold of PW2 who was trying to avoid hitting of the chopper and first accused hit him on his head and neck again. Soy also fell down. It is deposed that thereafter the accused persons left the place and PW1 ran away from the place. On route, he found his father PW19, brother Jerald and PW16 coming along the road in a jeep. Soy also fell down. It is deposed that thereafter the accused persons left the place and PW1 ran away from the place. On route, he found his father PW19, brother Jerald and PW16 coming along the road in a jeep. They went to the scene of occurrence and took injured Roy and Soy to the hospital. Initially they were taken to Sultanbathery Government Hospital and thereafter to Medical College Hospital. Doctor examined Roy and he was declared to be dead. PW2 was admitted in the Intensive Care Unit. He also deposed that there was enough light to identify the accused. On the next day morning at 9.15 am, he came back from Medical College Hospital and gave Ext.P1 statement. He also identified MO1 chopper used by the first accused to attack PW2 and deceased Roy. 13. PW2 is the injured. He also deposed in tune with what PW1 has stated. According to him, after he was hit by A1 with a chopper, A2 caught hold of his hand. He sustained hurt on his neck, face, head etc., and fell down in a ditch. The motorcycle fell upon him and he lost consciousness. He regained consciousness only after 5-6 days. He also deposed about A1 and A2 hitting with the chopper. 14. PW3 Eayannam Thomas is another eyewitness but he did not support the prosecution case. PW4 yet another eyewitness also did not support the prosecution case. She however stated that she heard a sound from outside during night on the date of occurrence, but she did not go outside. 15. PW5 is a witness to Ext.P5 scene mahazar. The scene of occurrence is near to the house of Eayannam Thomas. PW6 another eye witness also did not support the prosecution case. She also deposed that she heard a sound on the date of occurrence but she did not go outside. PW7 is also a witness to Ext.P5 scene mahazar. He admits his signature in the mahazar but he does not know the contents thereof. As already stated, PW8 is the Doctor who conducted postmortem who had deposed that injury Nos. 1 and 4 on Roy are sufficient in the ordinary course of nature to cause death of a person. He also deposed that the injuries found on the body of the person is possible with MO1 chopper. PW9 is the Doctor who examined PW1 and Ext.P8 is the wound certificate. 1 and 4 on Roy are sufficient in the ordinary course of nature to cause death of a person. He also deposed that the injuries found on the body of the person is possible with MO1 chopper. PW9 is the Doctor who examined PW1 and Ext.P8 is the wound certificate. He suffered the following injuries:- "1. diffuse swelling with laceration 1 cm size on LT side of face swelling measuring 3x3 cm; 2. abrasion 4x4 cm, swelling LT side of neck, swelling measuring 3x3 cm." 16. PW10 is a witness to Ext.P11 inquest report. PW11 is also a witness to the inquest. PW12 is the police officer who had witnessed the Sub Inspector seizing the mahazar as per Ext.P12 mahazar. PW13 as already stated is the Doctor who had examined PW2 and noted his injuries. PW14 is the Village Assistant who had prepared Ext.P14 plan. PW15 is the police officer who had recorded Ext.P1, FI statement, and registered Ext.P1(a), FIR. PW16 is the person who accompanied PW19 to take the injured to the hospital. PW17 is the witness to Ext.P15 mahazar by which MO1 knife was recovered by the police. However he deposed that he had not seen the police recovering the knife. Though he admitted his signature, he does not support the prosecution case regarding recovery and he was declared hostile. PW18 is another witness for recovery, who also turned hostile. PW19 is the father of PW2. He had not witnessed the incident but had taken the injured to the hospital. PW20 is another person who explains the initial confrontation/altercation between the parties. He stated that he had interfered in the matter and both were asked to move away. The accused had gone to their house and PW1 and PW2 had gone to their house. He further stated that he had taken PW2 to the hospital in between Meenangadi and Muttilin. In cross examination he stated that PW2 had created the problem. 2nd time problem was created by PW1. They had come to the accused and created the problem. PW19 had come to the scene of occurrence initially. However, he had not seen how the injury was caused to the deceased. PW21 has turned hostile to the prosecution. PW22 was the Circle Inspector of police during the relevant time who conducted investigation into the crime. They had come to the accused and created the problem. PW19 had come to the scene of occurrence initially. However, he had not seen how the injury was caused to the deceased. PW21 has turned hostile to the prosecution. PW22 was the Circle Inspector of police during the relevant time who conducted investigation into the crime. PW23 was the Judicial First Class Magistrate who had recorded the statement under 164 Cr.P.C. of Thomas, S/o Devassy which were marked as Exts.P2, P2(a) and P2(b). 17. The fact that deceased Roy and PW2 sustained severe injuries during the incident is clear from the evidence of PW1, PW2, PW16 and PW19 and the said fact is corroborated by medical evidence of Doctor PW8, PW9 and PW13. The contradictions had been marked with reference to the FIS wherein PW1 had stated first that they came near Soy (PW2) and brandished the chopper. He does not remember whether PW2 sustained injuries at that time. Thereafter they attempted to attack PW1 and Roy. They moved back and at that time PW1 was attacked with a stone. Roy (deceased) was attacked with the chopper and after that Soy was attacked. Another contradiction pointed out is that, after he cried and ran home and on the way he saw his father. Apparently, this is not a material contradiction to discard his evidence. He had spoken to the fact that all of them were attacked by accused 1 and 2. Only thing is that he had not given the details in the FIS. It is settled law that no details need be specified in the FIS and that apart this is an instance where everything happened within a short time. PW1 is the person who saw his brother and brother-in-law being attacked with a chopper and he saw them calling the accused. Immediately, he also sustained an injury with a stone. He sustained two injuries as evident from the wound certificate Ext.P8. He cried and ran back and on the way he saw his father. Next day morning, after the injured were taken to the hospital, the FI statement was given. 18. Now coming to the contradictions pointed out, as against the evidence of PW2, the only contradiction is that there was a previous issue between the accused and the family members of PW2. Next day morning, after the injured were taken to the hospital, the FI statement was given. 18. Now coming to the contradictions pointed out, as against the evidence of PW2, the only contradiction is that there was a previous issue between the accused and the family members of PW2. In fact, such a contradiction has nothing to do with the factual issues involved in the matter and it has nothing to do with the oral testimony of an injured witness. He may have an enmity with the accused, but it is in evidence that there was a confrontation between the two groups a few hours before the incident as spoken to by PW20. According to PW1 and PW2, when they came home, they saw that the gold chain of PW2 was missing and they along with Roy proceeded to the house of the first accused and on the way the incident happened. PW19, their father, also supported his version. When he came to know that these people have left to the house of accused, he knew that something may happen and therefore he was proceeding to the said place and on the way he saw PW1 coming back running stating that PW2 and Roy had fallen down. Hence, the evidence of PW1 and PW2, though stated to have some contradictions, those are not material as far as the identification of accused are concerned. Therefore, there is enough proof to come to an inference that the deceased had died and PW2 got injured at the hands of the first accused. The Court below had acquitted the second accused only on the ground that he cannot be constructively made liable for the offence committed by first accused invoking Section 34 I.P.C. as he was only holding Roy and PW2 and the Court did not believe that he was holding them to enable first accused to hit them with a chopper. But the fact that the first accused had committed the crime is spoken to by PW1 and PW2 and no further evidence is required in the matter to find the accused guilty of the offence of murder as well as attempting to commit murder. 19. But the fact that the first accused had committed the crime is spoken to by PW1 and PW2 and no further evidence is required in the matter to find the accused guilty of the offence of murder as well as attempting to commit murder. 19. Yet another argument raised by the learned counsel for the appellant is that the accused were not the aggressors whereas the aggressors were PW1, PW2 and Roy and it was an attempt of a self defence and they had to defend themselves and there was no premeditation for committing murder. In chief examination PW1 had stated that when Roy called the accused by name, first accused came from the house of Eayannam Thomas with a chopper and the second accused Biju came with a stone. Roy asked him why he is coming with a chopper. Immediately the second accused hit him with the stone. In the meantime, first accused brandished the chopper against Roy. Roy moved back. Immediately second accused went and caught hold of Roy and the first accused hit him on his head and hands. Roy fell down. Thereafter, they proceeded against PW2 and he also suffered injuries. Some omissions and contradictions were there with reference to the incident that happened prior to the incident, which is not the subject matter of the case. Another omission was regarding his evidence that he saw the first accused coming with a chopper and the second accused coming with a stone. In the FI statement, it is clearly stated that when they reached the house of Thomas, Roy called them VERNACULAR MATTER Further it is stated that VERNACULAR MATTER. Therefore, we do not think that there is any much omission as stated, which may amount to contradiction. 20. Similarly, in the evidence of PW2, he had also spoken to the fact that PW1 was injured by second accused Biju with a stone, that first accused had inflicted injury on Roy and first accused had inflicted injury on PW2. Therefore, the involvement of the first accused in the crime when believed from the evidence of PW1 and PW2 is rather clear. 21. Yet another aspect is regarding the recovery of the weapon. Ext.P23 is the confession statement given by the first accused. Ext.P15 is the mahazar on the basis of which MO1 chopper was seized. PW17 and PW18 are the witnesses to the mahazar. 21. Yet another aspect is regarding the recovery of the weapon. Ext.P23 is the confession statement given by the first accused. Ext.P15 is the mahazar on the basis of which MO1 chopper was seized. PW17 and PW18 are the witnesses to the mahazar. They admit their signature, but they have given evidence stating that they had not seen recovery of the material object. Court below in fact did not believe the recovery by accepting the testimony of PW17 and PW18. But even in the absence of the recovery, when PW1 and PW2 had given evidence and they are injured witnesses, their presence at the time of occurrence is proved. Their evidence indicates that when Roy called the accused, he immediately came with a chopper and the attack was started by the second accused by inflicting a blow on PW1. The defence does not have a case that PW1 and PW2 had come with any weapons. The accused were not injured in any manner. What was the reason for the first accused coming with a chopper when his name was called by deceased Roy' Definitely, he had an intention to commit the crime of murder and it can never be treated as an act of self defence especially when there is no evidence to show that the witnesses or Roy were not wielding any weapons. 22. Learned counsel for the appellant made an attempt to contend that even assuming that Roy died in the incident and PW2 was injured, it is not a case coming within the purview of Section 300 of I.P.C. and the incident does not amount to culpable homicide amounting to murder. If it is not culpable homicide not amounting to murder, it would come within any of the exceptions and we do not think that the offence now committed would come within any of the exceptions as stated in Section 300. Only if it comes within any of the exceptions, would Section 304 be attracted. In the case on hand, of course there was a previous confrontation between the two groups. Only if it comes within any of the exceptions, would Section 304 be attracted. In the case on hand, of course there was a previous confrontation between the two groups. But when one of the groups comes to the residence of member of the other group and even assuming that their intention was to create a further problem, suddenly attacking those persons, who were not having any weapons with them, with a chopper and inflicting severe injuries is with a clear intention to commit culpable homicide amounting to murder. We do not think from the facts of the case that a different view is possible. We do not find any merit in the contentions urged, and there is no reason to interfere with the sentence imposed on A1. 23. Appeal is, therefore, dismissed.