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2022 DIGILAW 616 (KER)

Gopi, S/o. Nanu v. State Of Kerala

2022-07-22

C.S.SUDHA

body2022
JUDGMENT : The appellant, the accused in S.C.No.220/2005 on the file of the Additional Sessions Court, Ad hoc-1, Kottayam, challenges in this appeal filed under Section 374(2) Cr.P.C., the conviction entered and sentence passed against him under Section 294(b) and Section 304 Part II IPC. 2. The prosecution case as revealed from the final report is as follows : The accused with the knowledge that the deceased, namely, Kuttappan @ Achayan, aged 60 years, is a chronic cardiac patient, on 27/06/2004 at 5.30 p.m. in the pathway situated in Udayagiri Colony, Alamparappu, Koovappalli Village, abused him by calling him obscene words and pushed him down, as a result of which Kuttappan suffered a cardiac arrest. Kuttappan breathed his last while being taken to the Government Hospital, Kanjirappalli. Hence the accused is alleged to have committed the offence punishable under Section 304 IPC. 2.1. Ext.P1 FIS of PW1 was recorded on the same day at 7.45 p.m. by PW10, the then Assistant Sub Inspector, Kanjirappalli Police Station. On the basis of Ext.P1 FIS, Ext.P1(a) FIR, that is, Crime No.201/2004 of the aforesaid Station, was registered on the same day under Section 174 Cr.P.C. for unnatural death. PW1 and PW12, the then Sub Inspector, Kanjirappalli Police Station and the then C.I. Kanjirappalli, are the investigating officers who completed the investigation and submitted the final report alleging that the accused has committed the offences punishable under Sections 294(b) and Section 304 IPC. 3. When the accused was produced before the court below, he was served with the copies of all the prosecution records. As the accused was unable to engage a defence lawyer, legal assistance was provided by engaging a defence lawyer who represented the accused in the proceedings before the court below. On 08/12/2005 the court below framed a charge under Section 294(b) and Section 304 Part II IPC, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 12 and got marked Exts.P1 to P10 and M.Os.1 to 3 in support of their case. On 08/12/2005 the court below framed a charge under Section 294(b) and Section 304 Part II IPC, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 12 and got marked Exts.P1 to P10 and M.Os.1 to 3 in support of their case. CWs.3 and 4, the occurrence witnesses; CWs.7 and 8, the children of the deceased and attestors to the inquest report; CWs.9 and 10, the persons who took the deceased to the hospital ; CWs.11 to 15 who are stated to have come to the scene on hearing about the incident and had seen the deceased being taken to the hospital ; CWs.16 and 17 attestors to the inquest report ; CW18 an attestor to the scene mahazar and CW24, a doctor of District Hospital, Kottayam, who is stated to have treated the deceased for heart ailment and issued treatment certificate, are seen given up by the prosecution. 4. After close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances that appeared in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He has also submitted a statement in writing in which he contends that on 27/06/2004 in the evening, on his return home from work, he saw Karaplackal Vijayan and Kuttappan, the deceased, in a conversation. Suddenly he saw Kuttappan falling down. Under the impression and belief that Vijayan had done something to the deceased, he rushed towards both of them. Hearing his cry, people of the locality rushed to the scene, then the said Vijayan quickly walked away. Seeing this, he had pursued Vijayan. He had then seen the people who had gathered there lifting Kuttappan who was lying on the ground. 5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused. 6. 5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/-and in default of payment of fine, to undergo rigorous imprisonment for 3 months for the offence under Section 304 Part II IPC. He was also convicted and sentenced to undergo one month rigorous imprisonment and also a fine of Rs.300/-for the offence punishable under Section 294(b) IPC and in default of payment of fine, to undergo rigorous imprisonment for 15 days. Both the sentences have been directed to run concurrently. Set off has also been allowed under Section 428 Cr.P.C. 7. The only point that arises for consideration in this appeal is as to whether the conviction entered and sentence passed against the accused by the court below are sustainable or not. 8. Heard Adv.Sunil Cyriac, the learned counsel for the appellant and Adv.Maya N.M., the learned Public Prosecutor for the respondent. 9. Before I go into the merits of the prosecution case and the arguments advanced on behalf of the defence, I shall briefly consider the ingredients of the offences alleged to have been committed by the accused. As per the final report and the court charge, the accused has committed the offences punishable under Section 294(b) and Section 304 Part II IPC. With respect to the charge under Section 294(b) IPC, the prosecution has to establish that the accused to the annoyance of others, has recited or uttered any obscene songs, ballad or words in or near any public place. The term 'obscene' has not been defined in the Penal Code. In P.T. Chacko vs. Nainan Chacko, 1967 KHC 231 it has been held by this Court that the test of obscenity is – whether the tendency of the matter charged as obscenity is to deprave and corrupt those and corrupt those whose minds are open to such immoral influences. This test has been uniformly followed in India. In P.T. Chacko vs. Nainan Chacko, 1967 KHC 231 it has been held by this Court that the test of obscenity is – whether the tendency of the matter charged as obscenity is to deprave and corrupt those and corrupt those whose minds are open to such immoral influences. This test has been uniformly followed in India. The Apex Court has accepted the correctness of the test in Ranjit D.Udeshi vs. State of Maharashtra, AIR 1965 SC 881 . This Court has also referred to the decision in Samuel Roth vs. U.S.A., (1957) 354 U.S. 476, wherein Chief Justice Warren said that the test of 'obscenity' is the “substantial tendency to corrupt by arousing lustful desires”. Mr.Justice Harlan in the said case observed that in order to be 'obscene' the matter must “tend to sexually impure thoughts”. 10. Now coming to Section 304 IPC. In Harendra Nath Mandal vs. State of Bihar, 1993 KHC 902, it has been held by the Hon'ble Supreme Court that Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of S.299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of S.300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. If death is caused and the case is covered by any one of the five exceptions of S.300 then such culpable homicide shall not amount to murder. S.304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses (1), (2) and (3) of S.300 but is covered by any of the five exceptions, it will be punishable under the first part of S.304. To put it otherwise if the act of the accused falls within any of the clauses (1), (2) and (3) of S.300 but is covered by any of the five exceptions, it will be punishable under the first part of S.304. If, however, the act comes under clause (4) of S.300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of S.304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused can be held guilty and punished under first part or second part of S.304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to Sec.300, which include death caused while deprived of power of self control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. 11. Having reminded myself of the law on the point, I will now consider whether the prosecution has succeeded in establishing the offences alleged to have been committed by the accused in this case. As referred to in Harendra Nath Mandal (Supra), for an accused to be held guilty and punished under the first or second part of Section 304 IPC, death must have been caused by him under any of the circumstances referred to in the five exceptions to S.300 IPC. PW5 is stated to be the Surgeon who conducted the postmortem examination of the deceased. PW5 when examined deposed that on 28/06/2007, while he was working as Assistant Professor, Forensic Medicine, Medical College Hospital, Kottayam, he conducted the postmortem examination of the body of a male named Kuttappan M.P., aged 60 years involved in Crime No.201/2004 of Kanjirappally Police Station. Based on the postmortem examination he had prepared Ext.P3 postmortem certificate which contains his seal and signature. PW5 deposed that his observations have been recorded in Ext.P3 postmortem certificate which are- “Body was that of a moderately nourished and moderately built, dark complexioned, adult male of height 157 cm and weight 60 kg. Eyes closed. Pupils dilated and equal on both sides. PW5 deposed that his observations have been recorded in Ext.P3 postmortem certificate which are- “Body was that of a moderately nourished and moderately built, dark complexioned, adult male of height 157 cm and weight 60 kg. Eyes closed. Pupils dilated and equal on both sides. Conjunctivae congested. Bleeding piles mass seen at the anal orifice. All other external body orifices normal. Finger nails blue. Cornea hazy. Rigormortis fully established and retained all over. Postmortem staining at the back, fixed. No sign of decomposition. Body not kept in the cold room. INJURY (Ante-mortem). Abrasion 3 x 1 cm on the back of right elbow. OTHER FINDINGS : Air passages congested and contained blood stained mucoid frothy fluid. Lungs were congested and oedematous. The walls of the coronary arteries were thickened and calcified with narrowing of their lumen. Anterior descending branch of the left coronary artery showed 80% narrowing at a site 1.5 cm away from its origin. Right coronary artery showed 70% narrowing. Right coronary ostea was reduced to the size of a pin hole. Left coronary ostea was partially occluded by a theromatous plaques. Aorta showed atheromatous plaques with ulceration and calcification. Stomach was 3/4th full with pieces similar to that of tapiocca and other unidentifiable food particles without any unusual smell; its mucosa normal. Urinary bladder empty. Superior surfaces of the right temporal lobe of brain showed a cystic swalling 5x4x3 cm. The scalp and skull normal. No bleeding in side or outside the sheeths of brain. Brain was congested. Viscera and blood have been collected, preserved and sent for chemical analysis. The whole heart and bits of tissues from internal organs were collected, preserved and sent for histopathological study. OPINION AS TO THE CAUSE OF DEATH: RESERVED PENDING THE REPORT OF LABORATORY INVESTIGATIONS.” According to PW5, the opinion as to cause of death was reserved, pending the report of the laboratory investigation. On receiving the chemical examination laboratory report, he had furnished the final report as to the cause of death as, due to coronary artery disease, a disease of the heart. The testimony of PW5 or Ext.P3 has not been discredited. Therefore, the prosecution has established that death has been caused. Now the question is how was the death of Kuttappan caused ? Was it as alleged by the prosecution ? 12. The testimony of PW5 or Ext.P3 has not been discredited. Therefore, the prosecution has established that death has been caused. Now the question is how was the death of Kuttappan caused ? Was it as alleged by the prosecution ? 12. As held by the Apex Court, Section 304 IPC does not create an offence but only provides the punishment for culpable homicide not amounting to murder. Now let us consider whether the prosecution has succeeded in establishing as to whether any act of the accused has resulted in the death of the accused. PW1, who gave Ext.P1 FIS to the Police, when examined deposed that on the said day, Kuttappan @ Achayan, the deceased, who everybody knew was quite unwell, had asked for a loan of Rs.50/-. He did not have the money, so he requested another person, i.e., Vijayan to lend Rs.50/-to the deceased. Vijayan had only a hundred rupee note with him and so PW1 took the note to a nearby shop, got the change, went to the house of the deceased and gave Rs.50/-to him. They both had a conversation for some time, the deceased had black coffee and later left for his home. PW1 then heard somebody uttering abusive words from a distance. He did not pay much attention, as such incidents are usual/ common on holidays in the colony. He then heard women of the colony making a hue and cry at a distance of about 50 meters in the pathway situated inside the colony. From his courtyard, he looked towards the place from where he heard the commotion. He then saw the accused walking towards him and Achayan on the ground. He rushed to the spot. He then saw Kuttappan lying exhausted on the lap of PW3. Immediately thereafter, the deceased was taken to the hospital. On the way, the deceased groaned/moaned once, urinated and then his head tilted towards the side. When they reached the hospital, the doctor said that Achayan had died. PW1 further deposed that he came to know that both Achayan and the accused had an exchange of abusive words on the said day. According to PW1, when he saw the accused walking away, the latter had a small stone in his hand. When they reached the hospital, the doctor said that Achayan had died. PW1 further deposed that he came to know that both Achayan and the accused had an exchange of abusive words on the said day. According to PW1, when he saw the accused walking away, the latter had a small stone in his hand. In the cross examination, PW1 deposed that the police had questioned him twice and then he had stated that the accused and Achayan had an altercation/quarrel while they had reached the pathway infront of the house of PW3. According to PW1, the reason for the same was when Achayan questioned the act of the accused brushing against his body while the latter passed him. 13. PW2, the wife of the deceased, Achayan, deposed that on the said day she had heard a commotion and abusive words being uttered. Hearing this, she went towards the place of occurrence. She then saw her husband lying on the ground. PW2 further deposed that it was the accused who had uttered the abusive words. According to her, the fact that her husband was a heart patient was known to all, including the accused. PW2 also deposed that accused has no enemity towards them. 14. PW3 an occurrence witness deposed that the incident had taken place in the pathway situated in the colony near his house. On the said day while Kuttappan was passing through the pathway, the accused was coming in the opposite direction. The accused then abused Achayan and pushed him below his neck. Achayan fell down. Achayan got up from the place when he fell, but when he reached in front of PW3's house, he again fell down. According to PW3, seeing this, he lifted Achayan from the ground. People of the locality gathered at the spot. The accused then with a stone in his hand, walked away. The accused had taken the stone fearing that people would beat/assault him. Achayan was thereafter taken to the hospital. PW3 also deposed that the fact that Achayan was a heart patient, was known to all. PW3 in the cross examination deposed that the accused abusing Achayan, had pushed him for no reason. Before that, there was no exchange of words. The accused had taken the stone fearing that people would beat/assault him. Achayan was thereafter taken to the hospital. PW3 also deposed that the fact that Achayan was a heart patient, was known to all. PW3 in the cross examination deposed that the accused abusing Achayan, had pushed him for no reason. Before that, there was no exchange of words. On further questioning, PW3 deposed that he had stated to the Police that he had heard Achayan questioning the accused as to why after consuming alcohol/liquor, he was picking quarrels with others. This conversation was before the accused had pushed him. PW3 further deposed that when unnecessary words were spoken, the accused had pushed Achayan. He also deposed that hearing these words, the accused who had passed the deceased, then turned, uttered an obscene word, went near Achayan, caught him below his neck and pushed him. 15. The testimony of PW1 and PW3 do not tally. Though the prosecution does not have a case that PW1 is an occurrence witness, it appears from his testimony that he had more or less seen the incident. But, he has no case that the accused had pushed Achayan down. Two different versions regarding the incident have been given by PW1 and PW3. PW1 is a loyal witness and so there is no reason(s) to disbelieve him also. Further, PW3 does not deny the defence case set up that there was a quarrel between the deceased and one Vijayan relating to money, pursuant to which the deceased had fallen down. PW3 only pleaded ignorance when questioned about the said defence version. 16. The remaining prosecution evidence is the testimony of the following witnesses -PW4, stated to be another occurrence witness, turned hostile when examined before the court below. She denied having given a statement to the police that she had seen the accused abusing and pushing Achayan down. PW4 deposed that she had only heard abusive words on that day. But she does not know whether the abusive words were addressed to Achayan. The then Village Officer, Koovappalli, when examined as PW7 deposed that she had prepared Ext.P5 scene plan and the point marked as no.4, is the scene of occurrence. PW8 deposed that he is an attestor to Ext.P6 scene mahazar prepared by the police. But she does not know whether the abusive words were addressed to Achayan. The then Village Officer, Koovappalli, when examined as PW7 deposed that she had prepared Ext.P5 scene plan and the point marked as no.4, is the scene of occurrence. PW8 deposed that he is an attestor to Ext.P6 scene mahazar prepared by the police. The then Assistant Sub Inspector of Police, Kanjirappalli Police Station, when examined as PW10 deposed that on 27/06/2004, he had recorded Ext.P1 FIS of PW1 on the basis of which he had registered Ext.P1(a) FIR. PW11, the then Sub Inspector of Police, Kanjirappalli Police Station, deposed that on 28/06/2004 he had conducted the investigation in this case. He had prepared Ext.P8 inquest report and had seized the shirt, lungi and undergarment worn by the deceased at the time of the incident, which have been marked as MOs.1 to 3 respectively. PW11 further deposed that he had proceeded to the scene of occurrence, prepared Ext.P6 scene mahazar; questioned the witnesses and recorded their statements. Further investigation was conducted by PW12. Finally, PW12, the then Circle Inspector of Police, Kanjirappalli, deposed that on 30/06/2004 he had taken over the investigation of the case. He had questioned the witnesses. On 30/06/2004 at 3 p.m., he had arrested the accused, produced him before the court below along with the remand report. Ext.P9 is the report containing the name and address of the accused in this case. According to PW12, he had completed the investigation and submitted the charge sheet before the court below. 17. The prosecution also relies on Exts.P4 and P7 treatment certificates, alleged to have been issued by PW6 and PW9. PW6 when examined deposed that on 08/04/2005 while he was working as Assistant Surgeon, Taluk Head Quarters Hospital, Kanjirappally, he had issued Ext.P4 treatment certificate to the effect that Kuttappan had been admitted in the hospital on 31/03/2004. On 01/04/2004, the patient had been referred to the District Hospital, Kottayam, for further management for 'cerebro vascular accident left hemiplegia and coronary artery heart disease'. According to PW6, the patient was susceptible to acute complicity at any point of time. To a question whether physical stress could aggregate the disease resulting in causing death, PW6 answered in the affirmative. In the cross examination PW6 deposed that in Ext.P4, the term 'cardio vascular accident' has been corrected by him as 'cerebro vascular accident'. According to PW6, the patient was susceptible to acute complicity at any point of time. To a question whether physical stress could aggregate the disease resulting in causing death, PW6 answered in the affirmative. In the cross examination PW6 deposed that in Ext.P4, the term 'cardio vascular accident' has been corrected by him as 'cerebro vascular accident'. He also deposed that the condition of the patient would aggravate if the patient did not avail medical treatment. He admitted that Ext.P4 does not refer to the source from where the information stated therein had been taken. 18. PW9, the Superintendent of District Hospital, Kottayam, deposed that a treatment certificate had been issued by Dr.Rajan Babu, with whose signature he is familiar with. He identified the signature and hence the certificate was marked as Ext.P7. PW9 deposed that Ext.P7 certificate, issued to one Kuttappan, states that the patient had been treated for cerebro vascular accident left hemiparasis and coronary artery. The patient had been admitted on 01/04/2004 at 01.45 p.m. He was referred to the Medical College Hospital on 01/04/2004 at 11.30 p.m. PW9, to a question whether any mental or physical strain would aggravate the disease, answered in the affirmative. PW9 in the cross examination deposed that in Ext.P7 certificate, the term 'cardio vascular accident' has been corrected as 'cerebro vascular accident'. Exts.P4 and P7 issued on 08/04/2005 and 07/04/2005 respectively, apparently after the incident in this case and by two doctors of two different hospitals, curiously have identical corrections made regarding the nature of the ailment. 19. Further, Exts.P4 and P7 certificates are inadmissible in evidence also as they are hit by the bar contained under Section 162 Cr.P.C. Any statement given by a witness, whether oral or in writing to the police during the course of the investigation is a statement under S.161 Cr.P.C. and hence inadmissible as it is hit by the bar contained in Section 162 Cr.P.C. Here, the treatment certificates, namely, Exts.P4 and P7 issued by PW6 and CW24, the latter certificate being proved through PW9 in the absence of CW24, have been issued at the request of the Police during the course of investigation. It is not the extract of the register from where the matter or contents in Exts.P4 and P7 have been taken, or the register that has been produced (Sasi vs. State of Kerala, 2019 KHC 465 ). It is not the extract of the register from where the matter or contents in Exts.P4 and P7 have been taken, or the register that has been produced (Sasi vs. State of Kerala, 2019 KHC 465 ). The certificates are seen prepared based on materials or inputs from some other source, which source has neither been made clear nor produced. This aspect may not be very material because the accused does not deny or dispute the fact that the deceased was a chronic cardiac patient. However, the evidence on record is not sufficient to prove the prosecution case beyond reasonable doubt that the accused had caused the death of Kuttappan @ Achayan. 20. Now coming to the offence under Section 294(b) IPC. As per the final report, the accused is alleged to have abused the deceased by uttering an abusive word, which is specifically referred to therein. Neither PW1 nor PW2, speak of the same. However, PW3 refers to the said word and has deposed that he heard the accused abusing the deceased by uttering the said obscene word. However, the other two witnesses have no such case. I have already found that I find no reasons to disbelieve PW1, a loyal prosecution witness. Further, from the evidence on record, this Court is unable to conclude whether the test of obscenity as laid down in the aforesaid decisions has been satisfied in the present case. That being the position, the finding of the court below that the prosecution has succeeded in establishing that the accused has committed the offence under Section 294(b) IPC cannot be found to be correct and hence needs interference. 21. In these circumstances, it can only be held that the prosecution has failed in establishing the guilt of the accused beyond reasonable doubt. Hence I find that the accused is entitled to get the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence of the accused for the offences punishable under Section 294(b) IPC and Section 304 Part II IPC by the impugned judgment is set aside and the appellant/accused is acquitted under Section 235(1) Cr.PC. His bail bond shall stand cancelled and he shall be set at liberty forthwith.