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2019 DIGILAW 58 (KER)

Devassia v. State Of Kerala

2019-01-17

A.M.SHAFFIQUE, SHIRCY V.

body2019
JUDGMENT : Shircy V., J. This appeal is directed against the judgment dated 07.09.2015 passed by the learned Principal Sessions Judge, Kottayam in S.C. No.357 of 2013, whereby, the accused (hereinafter referred to as the appellant) was convicted for the offences punishable under Sections 449 and 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,00,000/- (Rupees one Lakh only) for the offence under Section 302 of IPC. He was also sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 25,000/- (Rupees Twenty Five Thousand only), in default to undergo simple imprisonment for six months for the offence under Section 449 of IPC. The sentences were ordered to run concurrently. 2. The brief facts, as culled out from the prosecution case are that the appellant was entertaining enmity towards the deceased, the father of PW1, namely, Devasya (hereinafter referred to as the deceased), on a wrong notion that the deceased was causing hindrance/obstruction to him in disposing of his property having an extent of 1 and ¾ cents which he received as share in partition of his family property. Due to his enmity towards the deceased, on 02/09/2012 at about 04.00 p.m. with the intention to commit murder of the deceased, trespassed into his residential house bearing Door No.232 in Ward No. I of Ettumanoor Grama Panchayath, Pattithanam Bhagom, Ettumanoor Village, Kizhakkumbhagom Kara, and attacked the deceased who was sitting on a chair in the sit-out of the house facing north. The appellant with a granite stone piece hit the deceased on his forehead, head, face and chest, and inflicted grievous injuries to him, and as a result the deceased fell down on the floor. While so, the appellant stamped over his chest using his feet and thereafter fled away from the place of occurrence. The injured Devasya was immediately taken to a private hospital and from there he was shifted to the Medical College Hospital, Kottayam. Though he was provided with proper treatment, his health deteriorated and on 07/09/2012 at 10.45 p.m. he succumbed to the injuries. 3. PW1, the son of the deceased informed the police about the incident. PW14 recorded Ext.P1 FIS and accordingly, FIR No.1131/12 was registered against the appellant for the offences under sections 451 and 307 of the Indian Penal Code. Though he was provided with proper treatment, his health deteriorated and on 07/09/2012 at 10.45 p.m. he succumbed to the injuries. 3. PW1, the son of the deceased informed the police about the incident. PW14 recorded Ext.P1 FIS and accordingly, FIR No.1131/12 was registered against the appellant for the offences under sections 451 and 307 of the Indian Penal Code. PW15, the Sub Inspector of Police registered Ext.P11 FIR and he seized MO.1 chair and MO4 granite stone from the place of occurrence. PW16 seized the treatment records of the deceased. PW11 conducted the autopsy and prepared Ext.P9 post mortem certificate. PW17 conducted major part of the investigation. He seized MO2 and MO3 by Ext.P10 mahazar. He arrested the appellant on 05/09/2012 from the bus stand at Ettumanoor. Ext.P14 is the arrest memo. Ext.P2 is the seizure mahazar prepared at the time of seizing MO5 and MO6. He also proved Ext.P15 report, Ext.P16 property list and Ext.P20 FSL report. He completed the investigation and laid the charge-sheet. As the injuries resulted in the death of Devasya, charge against the appellant was altered. Ext.P13 report was submitted by the investigating officer for incorporating Sections 449 ad 302 of the Indian Penal Code and accordingly charge sheet was laid against the appellant. 4. Charges were framed against the appellant under the above sections of law to which he pleaded not guilty. At the trial, in its endeavour to prove the guilt against the appellant the prosecution had examined PWs.1 to 19 as witnesses, and also tendered documentary evidence as Exts.P1 to P22. Mos.1 to 6 were also produced and identified. During 313 examination, the appellant submitted that he was falsely implicated but, did not adduce any evidence, to support his contention. The trial court convicted and sentenced the appellant under the above sections of law as mentioned above. Assailing the conviction and sentence passed against him, he preferred this appeal. 5. We have carefully considered the rival contentions advanced by both the parties and gone through the materials available on record and perused the impugned judgment. 6. Smt. Shirlymol Thomas, the learned counsel appearing for the appellant has vehemently argued that the prosecution has failed to adduce proof of strong motive for the appellant to commit the offence. According to her, there is absolutely no evidence to connect him with the alleged crime. In fact he was falsely implicated in the case. 6. Smt. Shirlymol Thomas, the learned counsel appearing for the appellant has vehemently argued that the prosecution has failed to adduce proof of strong motive for the appellant to commit the offence. According to her, there is absolutely no evidence to connect him with the alleged crime. In fact he was falsely implicated in the case. There are material contradictions in the evidence of the witnesses. Evidence of PW2 is not trustworthy and she is a highly interested witness. Alleged weapon used to commit the offence and the dress of the deceased were not blood-stained as alleged by the prosecution. As per the postmortem certificate, the cause of death is septicemia and cardio pulmonary arrest. Moreover only one injury was noted in the wound certificate. On the date of admission, the name of assailant was not stated to the hospital authorities. The Court below has not appreciated the evidence properly. The prosecution has failed to prove the alleged motive and the alleged offence beyond reasonable doubt and therefore, the conviction is not worthy to be sustained and it is to be set aside and the appellant is entitled for an acquittal. 7. On the other hand, Shri S.U. Nazar the learned Senior Public Prosecutor, submitted that there is enough material on record to prove the guilt of the appellant which is supported by the evidence of the witnesses and corroborated by the medical evidence. The deceased, an octogenarian was attacked while he was sitting peacefully in his own house. The aggressor who is a relative of the deceased trespassed into his house with MO4 stone and all on a sudden unleashed violence on him and inflicted severe injuries on the vital parts of the body to ensure the death of the deceased. Though, treatment was provided, within few days the deceased lost his life. All the available evidence prove only one hypothesis and that is the guilt of the appellant. Direct evidence is corroborated in material particulars by other circumstances. The Court below is fully justified in arriving at the present conclusion and there is no need to disbelieve the prosecution story and to interfere with the just finding of the trial Court, is the contention of the learned Senior Public Prosecutor. 8. The alleged incident was on 2.9.2012 and the death of the deceased was on 7.9.2012 at the Medical College Hospital, Kottayam. 8. The alleged incident was on 2.9.2012 and the death of the deceased was on 7.9.2012 at the Medical College Hospital, Kottayam. Ext.P22 the case sheet of the deceased was proved through PW19 the Head of Department of Neurology attached to the Medical College Hospital, Kottayam. He had stated that the deceased sustained serious internal brain injury including fracture to frontal and parietal bone and subrachnoid hemorrhage and his condition got deteriorated and they could not save his life. PW10 is another Doctor who attended Devasya at Medical College Hospital on 02/09/2012 and issued Ext.P8 wound certificate. PW11 is the Doctor who conducted the autopsy over the dead body of the deceased. He proved the postmortem certificate as Ext.P9. Ext P9 shows that the deceased sustained the following injuries : “Injuries (Ante-mortem) 1. Sutured lacerated wound 8 cm. coronally placed on the left side of head, inner end, 2 cm outer to midline and 12 cm above the eyebrow. 2. Contusion of scalp over an area 10 x 7 x 0.5cm involving the left frontal and temporal region of head, underneath vertical fissured fracture 16 cm, involving the temporal and parietal bone and was extending downward to involve the anterior cranial fossa. Brain showed bilateral subdural and subrachnoid haemorrhage. Laceration of brain 11 x 3 x 3 cm involving the right temporoparietal lobes. 3. 'Y' shaped sutured lacerated wound, on the right side of head. Sagitally placed, vertical limb 3cm and oblique limb 1cm long, front end 2 cm outer to midline and 7cm above the eyebrow. 4. Abraded contusion 5 x 5 x 0.5 cm on the left side of forehead, 3cm outer to midline and 5cm above the eyebrow. 5. Abraded contusion 4 x 2 x 0.5cm on the right side of back of head 4 cm outer to midline 3 cm above the root of neck. 6. Abrasion 2.5 x 2cm., 1.5cm outer to corner of left eye. 7.Contusion 5 x 2 x 0.5cm on the front of left ear. 8. Abrasion 1 x 1cm on the top of right ear. 9. Abrasion 3 x 1cm, vertical on the left side of front of chest, upper end 3 cm outer to midline and 8cm below the collar bone. 10. Fracture of 3 to 7 left ribs on the front aspect along the anterior axillary line. Left chest cavity contained 200 ml.of haemorrhagic fluid. 11. 9. Abrasion 3 x 1cm, vertical on the left side of front of chest, upper end 3 cm outer to midline and 8cm below the collar bone. 10. Fracture of 3 to 7 left ribs on the front aspect along the anterior axillary line. Left chest cavity contained 200 ml.of haemorrhagic fluid. 11. Fracture of 6 to 8 right ribs along the anterior axillary line. 12.Transverse fracture of sternum, 6cm below the suprasternal notch. 13. Abrasion 2 x 0.5 cm on the outer aspect of right arm, 13 cm below the tip of shoulder. 14. Abrasion 4x3 cm on the outer aspect of right elbow. All the above abrasions were covered with brownish adherent scab and contusions were bluish in colour. INTERNAL Air passages contained thick mucoid secretion, mucosa congested Lungs were pale. Heart walls, valves and chambers were normal. Coronaries were patent. Stomach contained 20 ml of brownish viscid fluid having no unusual smell, mucosa showed submucosal haemorrhage at places. Urinary bladder was empty. All other internal organs were pale otherwise appeared normal. Opinion as to cause of death : Death was due to injuries sustained to head and chest.'' 9. PW11 has specifically opined that the injuries noted as 1,2, 3, 9, 10, 11 and 12 could be caused by hitting with MO4 stone and the fatal injuries found on the head and chest were sufficient to cause death and those injuries caused his death. In cross examination, the Doctor made it clear that the death of the appellant was not due to septicemia as suggested by the learned counsel for the appellant. In fact, he confirmed that the injuries 1,2,3,and 9 to 12 could be caused by hitting with MO4 stone. Therefore, it is proved that the death of the deceased was a homicidal death. 10. PW1 is the son of the deceased. The appellant is brother of his brother-in-law. PW1 gave Ext.P1 FIS to PW14. He is not an eyewitness to the incident in which the deceased sustained injuries. He deposed that on 2.9.2012 at about 4 p.m. while he was engaged with his work, he received a phone call from PW2, his wife that the appellant attacked the deceased and he hit the deceased with a granite stone on his face, head and chest and when he fell down the appellant stamped him on his chest and thus inflicted grievous injuries on him. Immediately, he directed her to take him to the hospital and his sons PW3 and CW5 (who is no more) with the help of a neighbour rushed him to the hospital. The deceased was first taken to Matha Hospital and from there to the Medical College, Kottayam. When he reached the hospital he found his father in the ICU in a critical condition and he breathed his last on 7.9.2012 at 10.45 pm. He further stated that the appellant was entertaining enmity towards the deceased and he used to pick up quarrel with him quite often. According to him in the year 1993, his share was allotted to him. On the very same day, he entered into an agreement with another person for sale of the said property and sold the property and the entire sale consideration was squandered by him. Later in the year 2012, the balance property left back was also shared and he was allotted 1 and 3/4 cents as his share. As he was a spendthrift a condition was imposed by his family and by that restriction he could sell his share only on the death of his brother who is the husband of the sister of PW1. The brother of the appellant who is none other than the son-in-law of the deceased, was residing at Gujarat with his family. The appellant used to demand money from the deceased as the value of his share as he is the father in-law of his brother and his brother was away at Gujarat. The appellant also used to pick up quarrel with the deceased alleging that the deceased was standing in the way of getting his share and that was the reason for his enmity towards the deceased and the motive for the crime committed by him. The version of PW1 regarding motive of the appellant for the commission of the crime is corroborated by the version of PW2 as well. 11. PW2 is the sole eye witness to the incident. She is the daughter in-law of the deceased and the wife of PW1. The deceased aged more than 80 years was residing in the family house with his wife, PW1 his son, PW2 his daughter-in-law and their children. 11. PW2 is the sole eye witness to the incident. She is the daughter in-law of the deceased and the wife of PW1. The deceased aged more than 80 years was residing in the family house with his wife, PW1 his son, PW2 his daughter-in-law and their children. PW2 has stated in her evidence that on 02/09/2012 at about 04.00 p.m., while she was plucking grass from the courtyard of their house, the appellant came from the nearby Panchayath road on the northern side with a granite stone and abused the deceased who was sitting on a chair in the sit-out of the house, saying that he has no business to interfere in their family matters and because of his unwanted interference he is suffering and further threatening that he would kill him, hit him with the granite stone firstly just below his eyes on the left side, then on his head and further on his chest and when the deceased fell down on the floor he was stamped on his chest by the appellant and thus caused grievous injuries on him. On seeing this, she cried loudly. Hearing her hue and cry, her younger son Jayesh (CW3 who is no more) and her mother-in-law rushed to the sit-out to save him. On seeing them the appellant fled away leaving the granite stone there. She then immediately informed PW1 about the incident over telephone and as directed, her children along with PW6 their neighbor, rushed the deceased to a nearby hospital namely Matha Hospital and then shifted to Medical College Hospital, Kottayam. She further stated that her father-in-law had undergone treatment there for about 6 days but he died on 07/09/2012 at about 10.45 p.m. She identified MO4 granite stone used by the appellant to inflict injuries on the deceased. She also identified MO5 and MO6 as the dress worn by the appellant at the relevant time. She deposed that the appellant sold his share of family property and squandered the entire sale consideration and he was entertaining enmity towards the deceased for retaining an extent of 1 and ¾ cents of land in the name of the brother of the appellant as the appellant was a spendthrift. 12. Learned counsel for the appellant argued that she being a close relative of the deceased is an interested witness and her evidence is not creditworthy. 12. Learned counsel for the appellant argued that she being a close relative of the deceased is an interested witness and her evidence is not creditworthy. It is further argued that it is impossible to have grass growing in the court yard where tiles have been laid on the ground and so her case that she happened to see the appellant entering into the courtyard and sit-out with a granite stone and inflicting injuries on the deceased, appears to be unbelievable. But such a contention find no force in our eyes. It is quite probable and natural to find the presence of grass even if the floor is tiled and that depends on the nature of the laying /placement of tiles on the floor. It is most significant to note that there was no cross-examination or not even a suggestion regarding this aspect to PW1 or to PW6 the witness in whose presence Ext.P4 scene mahazar was prepared and also to PW17 the investigating officer. The next point urged by the learned counsel for the appellant is that the object of assault i.e. MO4 stone recovered from the site was not found with blood-stains. The absence of blood stains on the granite stone does not discredit the oral testimony of PW2 as the prosecution have no case that there was profuse bleeding so as to have blood stains on MO.4 and so, such a contention is also merit less in our view and do not fall for consideration. She clearly portrayed the incident in which the appellant attacked the deceased causing fatal injuries on him which resulted in his death. She stated that the cause of occurrence is the enmity of the appellant towards the deceased and she vehemently denied the suggestion of defence that she had not seen the occurrence. PW2 being an inmate of the house could only be treated as a' natural witness' to the incident. A witness being a close relative of the deceased is not enough to reject his/her testimony, if it is otherwise credible. Mechanical rejection of evidence of even an interested witness may lead to failure of justice. The occurrence has taken place in broad day light. The appellant is also a relative of PW2. There is no reason for her to implicate him in a false case. Mechanical rejection of evidence of even an interested witness may lead to failure of justice. The occurrence has taken place in broad day light. The appellant is also a relative of PW2. There is no reason for her to implicate him in a false case. She had vehemently denied the suggestion of the defence that she had not seen the occurrence and due to her enmity towards the appellant he was falsely implicated. We find her evidence to be wholly trustworthy, cogent and intrinsically reliable. In our considered view, the evidence of the Doctors, fully corroborates with the evidence of PW2. 13. The scene of occurrence is the courtyard of the residential house of PW1. Ext.P7 issued by PW9 indicates that the house belongs to PW1 the son of the deceased. It was also brought on record that PW1, his wife PW2, and their children and the deceased and his wife were residing in the said house. But at the time of the incident PW1 and PW3 were away with their work and CW3, the other son of PW1 and PW2 and the wife of the deceased were inside the house and they rushed to the spot only on hearing the clamour of PW2, who witnessed the incident. Admittedly, the appellant though a relative of the deceased was not a resident of the house. Evidence on record would establish the fact that the appellant trespassed into the said house with MO.4 with an intention to commit the offence due to his enmity towards the deceased and hence the attack was with premeditation. 14. It is well settled that the appellate court like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the appellant has been proved beyond all reasonable doubt. 15. It is also to be noted that in the present case, motive for the attack on the deceased can be traced from the evidence produced by the prosecution. As mentioned above the deceased an octogenarian on the fateful day was simply sitting in the sit-out of the house. As an elderly person he had interfered in the family partition of property of the appellant being the brother of his son in-law and that too with the genuine intention to protect the property of the appellant from being sold for his welfare alone as he was spendthrift. As an elderly person he had interfered in the family partition of property of the appellant being the brother of his son in-law and that too with the genuine intention to protect the property of the appellant from being sold for his welfare alone as he was spendthrift. It is also evident from the record that the granite stone of 71 cm circumference and 22cm length used as weapon of offence was recovered on the next day of the incident from the front courtyard of the house by the police while preparing the scene mahazar. PW3 deposed that he got the information that the appellant attacked the deceased from CW3 (who is no more) through a phone call and he reached the house immediately and they together with the help of PW4 rushed the deceased to the hospital. PW4 also corroborates the evidence PW3. When direct and reliable evidence are available, motive loses its importance. But, here the motive was properly proved and it would in fact strengthen the prosecution case. 16. Therefore, it is abundantly clear that the appellant committed murder of the deceased. The truthful and consistent version of the eye witness coupled with the medical evidence and other reliable and cogent evidence unerringly points towards the guilt of the accused/appellant. The trial court correctly appreciated the evidence and convicted the appellant as the prosecution was successful in proving the guilt of the appellant beyond all reasonable doubt. 17. Considering the entirety of the evidence, it does not appear that the learned Sessions Judge has committed any error in convicting the appellant under Sections 302 and 449 of the Indian Penal Code and sentencing him accordingly. We therefore, do not feel that there is any scope to interfere with the conviction and sentence passed against the appellant. The appeal is devoid of any merit. The conviction and sentence passed by the learned Sessions Judge are hereby confirmed. Accordingly, the appeal stands dismissed.