High Court Kerala High Court

Viswakumar @ Kuttappi vs State Of Kerala on 30 March, 2007

Kerala High Court
Viswakumar @ Kuttappi vs State Of Kerala on 30 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 844 of 2004()


1. VISWAKUMAR @ KUTTAPPI,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY A
                       ...       Respondent

                For Petitioner  :SMT.SANGEETHA LAKSHMANA

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :30/03/2007

 O R D E R
                  J.B. Koshy & T.R. Ramachandran Nair, JJ.

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                              Crl. Appeal NO.844 of 2004

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                      Dated this  the  30th  day of  March, 2007


                                        JUDGMENT

Ramachandran Nair, J.

The appellant is the sole accused in S.C. No.724/2003 of the Sessions

Court, Kollam. The appellant was charged for offence punishable under

Section 302 I.P.C. and having found him guilty of the charge, the court

below convicted and sentenced him to undergo imprisonment for life and to

pay a fine of Rupees Three Lakhs and in default, to undergo simple

imprisonment for three years.

2. The deceased is one Leela Kumari @ Leela, the sister of the

appellant. The occurrence was on 2.5.2001 at 12 noon. According to the

prosecution, the accused entered the courtyard of the house known as Babu

bhavan, with a tapping knife, assaulted the deceased and when she fell

down, the appellant inflicted injuries with the knife on the chest, etc. She

died at 1 p.m. while being taken to the hospital.

3. The First Information Statement was given by P.W.1 at 2.30 p.m.

on 2.5.2001 itself. P.Ws.1 to 15 were examined and Exts.P1 to P11 and

M.Os.1 to 8 were marked on the side of the appellant. DWs.1 and 2 were

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examined and Ext. D1 & D2 were marked on the side of the defence.

4. The First Information Statement was given by P.W.1, the husband

of the victim. The eye witnesses are P.Ws.2 and 3 who are the children of

the victim and were aged 15 and 12 respectively. P.W.4 was declared

hostile to the prosecution. P.W.5 deposed that he saw the accused running

away and he admitted to have heard the cries of P.Ws.2 and 3.

5. The defence was one of total denial. The following injuries were

sustained by the deceased as noted in Ext.P5:

“1. Shaped incised penetrating wound 4 x 1 cm obliquely placed on

the left side of chest 6 cm below armpit. Both ends were found

sharply cut. The wound entered into the chest cavity through the 4th

intercostal space, transfixing the front aspect of pericardium, left

ventricle at its middle, back aspect of pericardium and was

terminated with neck on the top of middle or right lobe of liver. The

left chest cavity contained 800 ml of fluid blood with clot. The left

lung was partially collapsed. The direction of the wound was

downwards, backwards and to the right. The total minimum depth of

the wound was 14.5 cm.

2. Abrabed contusion 2.5 x 2.5 cm on the back of middle of left

hand.

3. Abrasion 2 x 0.5 cm on the back of the left wrist.

4. Incised wound 2.5 cm x 0.2 cm skin deep oblique on the front of

left side of chest 12 cm outer to midline and 9 cm. below top of

shoulder.

5. Abrasion 1 x 0.5 cm on the front of middle of chest just above the

lower end of sternum.

Crl.A.844/2004 -3-

6. Abrasion 0.5 x 0.5 cm on the front of left side of chest 1.5 cm

outer to midline and 1.5 cm below the lower end of sternum.

7. Abrasion 1.5 x 1 cm on the front of right thigh 6 cm below the

hipbone.”

The doctor who was examined as P.W.9, deposed that the victim died due

to injury No.1 which was sustained on the chest and also of the injury in the

abdomen.

6. The eye witnesses examined are P.Ws. 2 and 3. P.W.1, the

husband of the deceased deposed that he along with his wife and two

children were residing in the house and it belongs to the mother-in-law.

Regarding the share of the father of the deceased, she had some dispute with

the accused. He was the driver of an autorickshaw at the relevant time and

on getting information, he came to the hospital and was informed by the

children that the mother had succumbed to the injuries. He speaks about an

incident which occurred on the previous night wherein the accused had

thrown stones at their house. His cross examination shows that regarding

the incident occurred on the previous night, he had submitted a complaint to

the police station.

7. The evidence of P.W.2 shows that on the date of occurrence there

was no school and in the morning he went for bathing. According to him,

at about 10 a.m. the deceased had gone to the house of the accused and after

Crl.A.844/2004 -4-

coming back she gave the children food. While the mother and children

were standing in the courtyard, the accused came running with a knife and

loudly abused the deceased. Seeing this, she ran for shelter to the house of

C.W.4 and before she reached there, P.W.4 closed the door and therefore

she had to run back. At that time, a scuffle occurred and the accused,

stating that today is her last day and that she will be finished, caught hold of

her by her hands and in that process, she fell down to the property of

C.W.4. which is lying lower. Immediately, the accused stabbed the

deceased with the knife in the armpit and then he ran away with the knife.

Thereafter, people rushed to the scene and she was taken in an autorickshaw

to the hospital. Even though P.W.2 was cross examined at length, nothing

could be brought out to discredit his evidence. He denied the suggestion

made by the defence that the deceased had gone to the house of the accused

and had tied the wife of the accused in a tree. According to him, even

though she went to the house, one or two utensils therein alone were

damaged.

8. P.W.3 is the daughter of the victim who was aged 12 at the time of

the incident. She also corroborated the evidence of P.W.2 She had also

stated clearly about the details of the occurrence and the incident that

occurred during the previous night that accused threw stones at their house

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and abused them. According to her, on that day the school was having a

holiday and in the morning the deceased had gone to the house of the

accused and in the scuffle some utensils had been damaged. Later on, after

she returned from there, the accused came running with a knife openly

declaring that she will be killed. According to P.W.3, while she along with

P.W.2 and mother were standing in the courtyard, the accused came running

and seeing it, deceased ran to the house of C.W.4 who closed the door

seeing her and thereafter a scuffle occurred and the mother was pushed by

the accused and in that process she fell down to the property of P.W.4.

Immediately, the accused stabbed her with the knife below the left armpit

and he ran away with the knife. She was taken to the hospital in an

autorickshaw and the children accompanied her. In the cross examination

also, she had deposed about the incident that occurred in the morning and

also about the altercation that had occurred at that time.

9. P.W.5 is a relative of the deceased and according to him, he heard

the children crying and when he went to the house of the victim, he saw the

accused running away with the knife. P.W.4 is a neighbour and according

to her, when the incident occurred, she was inside the house. When she

found the accused coming running with the deceased and when the scuffle

occurred, she closed the door. Only after other people assembled in the

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place, she opened the door and found the deceased lying in the property.

10. In the light of the above evidence, the question is whether

prosecution has been successful in establishing the guilt of the accused.

The counsel for the appellant argued that the evidence adduced is not

sufficient to prove the guilt of the accused. It was contended that the

evidence of P.Ws.2 and 3 could not have been accepted as they are child

witnesses.

11. P.Ws.2 and 3 are aged 15 and 12 respectively at the relevant time.

They have deposed the substratum of the prosecution case and their

evidence is natural and convincing. There are no vitiating contradictions or

other inadequacies to reject their evidence. The argument raised that the

prosecution case has not been proved by clear medical evidence about the

injury inflicted on the deceased, is also not correct. We find, on a reading of

Ext.P5 and the evidence of the doctor, that the prosecution has successfully

established that the injuries have been caused by the knife used by the

accused. The evidence of P.Ws.2 and 3 has also been corroborated by the

evidence of P.Ws.4 and 5.

12. The evidence of D.W.2, the wife of the accused cannot be

accepted. There were some disputes between the families regarding the

sharing of properties. There is nothing to show that deceased might have

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sustained injuries otherwise than as alleged by the prosecution. As found

already, Ext.P5 as proved by P.w.9 would show that there was incised

penetrating wound on the left side of the chest below the armpit which

according to P.W.9, was sufficient in the ordinary course of nature, to cause

death. The fact that the accused had inflicted injuries is clearly established

from the evidence of P.Ws.2 and 3. For inflicting injury, he overpowered

the victim who had fell down in that process. She sustained injuries while

lying down on the ground. There is no evidence to support the defence

version that there was a scuffle and accused wanted to ward off attack

against him.

Hence, we find no ground to interfere with the conviction and

sentence awarded. The court below has awarded a fine of Rs.3 lakhs which

we reduce to Rs.3,000/-. Hence the appeal is dismissed upholding the

conviction and sentence and with the only modification that the fine of

Rs.3 lakhs awarded by the court below is reduced to Rs.3,000/-.

(J.B. Koshy, Judge.)

(T.R. Ramachandran Nair, Judge.)

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J.B. Koshy & T.R. Ramachandran Nair, JJ.

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Crl. Appeal NO.844 of 2004

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JUDGMENT

30th day of March, 2007