IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 891 of 2005()
1. SASIKUMAR @ SASI, S/O.PURUSHOTHAMAN,
... Petitioner
Vs
1. STATE OF KERALA (C.I. OF POLICE,
... Respondent
For Petitioner :SRI.T.A.SHAJI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :22/06/2009
O R D E R
A. K. Basheer & P. S. Gopinathan, JJ.
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Crl.A. No. 891 of 2005
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Dated this the 22nd day of June, 2009.
Judgment
Basheer, J:
This appeal is at the instance of the accused who has been
found guilty under Section 302 IPC. He stands convicted and
sentenced to undergo imprisonment for life and to pay a fine of
Rs.25,000/- with a default sentence of rigorous imprisonment for 6
months.
2. The prosecution case in brief was that the
appellant/accused inflicted a fatal injury on the neck of Dileep
Kumar, the deceased, with M.O.1 chopper because of his previous
animosity, on Kindankara-Neerettupuram public road in front of
St.Joseph’s Chappal at about 7.15 p.m. on March 19, 2000. The
incident was allegedly witnessed by Pws. 1 to 3 who were present
in the premises of the chappal watching the auction of the
offerings made by the devotees at the church in connection with
the annual festival. Though the deceased was removed to the
hospital he was declared dead by the doctor who examined him.
Pw.1 had reported the incident to the Police at about 10.30 p.m.
Ext.P1 First Information Statement of Pw.1 was recorded by Pw.9,
pursuant to which Ext.P1(a) First Information Report was
registered and investigation was conducted by Pw.10, Circle
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Inspector. M.O.1 chopper and M.O.2 and M.O.2 (a) pieces of stick
used by the appellant to commit the crime were also recovered in
the course of investigation. Ext.P6 post mortem certificate
revealed that death was caused due to the injury suffered by the
victim on his neck. Charge sheet was laid by Pw.11 after
completing the investigation.
3. Prosecution examined Pw.1 to 11 and marked Exts.P1 to
P14 and M.O.1 to M.O.6 on its side. Dws.1 and 2 were examined
on the side of the defence and Exts.D1 and D2 were also marked
on its side. The learned additional Sessions Judge, after
evaluating the oral and documentary evidence on record , held that
the prosecution had succeeded in proving the charge against the
appellant/accused. Accordingly he was convicted and sentenced as
indicated above. The said order of conviction and sentence is under
challenge in this appeal.
4. Before we deal with the question whether any interference
is warranted with the order impugned in this appeal, it may be
profitable to refer to the evidence of the prime witnesses examined
by the prosecution in the case.
5. Pw.1 is admittedly related to the deceased and accused.
He deposed before court that he was present at the premises of
St.Joseph Church at about 7.15 p.m. on March 19, 2000. He had
gone there to participate in the auction of the offerings made by the
devotees at the Church in connection with the festival. When the
Crl.A.No.891/2005. : 3 :
auction was in progress, he saw the deceased and accused coming
towards the church running from the southern side. When they
reached in front of the church the accused who had been following
the deceased got in front. Accused was carrying M.O.1 chopper in
his right hand and M.O.2 stick in his left. The accused cut at the
right knee of the deceased with the chopper. Deceased fell down
on the ground. Accused inflicted two more cut injuries on the
deceased, the first of which fell just below the shoulder and the
second one on the neck in front. Blood started to ooze out from
the injury on the neck. The accused also hit the deceased with the
stick 4-5 times which fell on several parts of his body. Pw.1
further deposed that himself, his friend Rajeev and Kunjumon ran
towards the deceased. At that time the accused ran away with the
chopper and stick. When they reached near the deceased he was
just grumbling. He was immediately taken to Ramankari in a jeep
which came from the southern side. According to Pw.1, Rajeev,
Mohanan, Krishnankutty, Dinesan apart from him had taken the
deceased in the jeep to Ramankary. Since there was no diesel in
the jeep the victim was shifted to an autorickshaw and taken to
Alappuzha Medical College The doctor who examined the
deceased declared him dead. Pw.1 went to Ramankary Police
Station and gave Ext.P1 statement. He stated that he had seen the
incident in the light available in the church premises in connection
with the festival. He identified M.O.1 chopper in the court as well
Crl.A.No.891/2005. : 4 :
as pieces of stick [M.O.2 and M.O.2 (a)]. He also identified the
shirt and kyli worn by the deceased at the time of the incident
which were marked as M.O.s 3 and 4. The shirt worn by the
accused was also identified by this witness as M.O.5. M.O.6
chappal worn by the deceased was also identified by this witness.
He further stated that the accused had inflicted the fatal injury
since he was inimically disposed of towards the deceased who
had peeped into the bathroom when the wife of the accused was
taking her bath. In cross examination this witness admitted that he
had not told the Police that the accused caught hold of the head of
the deceased when they reached in front of the church. We will
deal with the evidence of this witness in detail a little later.
6. Pw.2 also deposed that he had seen the two accused
running towards the church with the deceased in front and the
accused behind him. The accused was carrying M.O.1 chopper in
his right hand and M.O.2 stick in his left. When they reached in
front of the church, accused caught hold of the deceased and
inflicted a cut injury below the right knee. This witness also
spoke about the two other injuries inflicted by the accused on the
deceased almost in identical fashion as was spoken to by Pw.1.
He also stated that accused had beaten the deceased with the stick.
According to this witness he along with Kochuvava, Mohanan,
Krishnankutty and some others went near the deceased after the
accused had gone back towards the southern side. To a specific
Crl.A.No.891/2005. : 5 :
question put to this witness as to whether he knew Pw.1, this
witness answered in the affirmative. He stated that Pw.1 was also
present at the scene. He further stated that after sending the
deceased in a jeep to the hospital he remained at the scene. At
about 11 O’clock in the night he was informed by the relatives of
the deceased that he was no more. This witness specifically stated
that Krishnankutty, Denesan, father of Kochuvava and some others
had taken the deceased to the hospital. This witness also deposed
that he knew about the quarrel between the accused and deceased
in connection with an incident when the deceased peeped into the
bathroom while the wife of the accused was changing her dress
after her bath. In cross examination this witness disowned Ext.D2
statement allegedly given by him before the Police to the effect
that at about 7.15 p.m. on the day of the incident the deceased and
the accused had an altercation and that the accused assaulted the
deceased as a sequel to the above incident.
7. Pw.3 also spoke about the incident in almost identical
terms as spoken to by Pws.1 and 2. This witness stated that he
was standing near the Church holding the auction. According to
this witness he along with Pw.1 and some others had taken the
deceased to Ramankari and from there to Alappuzha Medical
College in an autorickshaw. This witness asserted that he was
standing near Pw.1 when the incident took place. But this
witness further stated that while running, the accused had used
Crl.A.No.891/2005. : 6 :
filthy language against the deceased. He also stated that the
accused had inflicted the injury standing on the right side of the
deceased. We will revert back to the evidence of Pws.2 and 3 a
little later.
8. Pw.4 who was stated to be a neighbour of the accused did
not support the prosecution. Therefore he was declared hostile. He
stated that he did not know about any incident that preceded the
crime. He did not hear any commotion from the residence of the
accused nor did he see any scuffle between the accused and the
deceased. He also did not see the deceased hitting the accused on
his head in the courtyard of his residence. In short, this witness
disowned whatever he had told the Police about the alleged
incident. He denied the suggestion that he was speaking falsehood
in order to help his neighbour.
9. Pw.5 was a witness to Ext.P8 inquest report. Pw.6 signed
as a witness to Ext.P3 search list and Ext.P4 mahazar for recovery
of M.O.2 and M.O.2(a). Pw.7 had allegedly witnessed recovery of
M.O.1 chopper under Ext.P5 mahazar on March 25, 2000 at about
11.30 a.m. Pw.8 conducted autopsy on the body of the deceased
and issued Ext.P6 post mortem certificate. In this certificate the
doctor opined that the deceased had died due to injury sustained to
neck. The following injuries were noticed by the doctor.
“Injuries (Antemortem):
1. Incised wound with contused
Crl.A.No.891/2005. : 7 :
margins 6.5 x 2 x. 2cm. obliquely
placed on the left side of front of neck,
its upper outer end was 4 cm. to the
left of mid line and 5 cm. below the
margin of lower jaw. Lower inner end
of the wound was 6.5 cm. above the
sternal notch at the mid line which
showed a tailing of 0.5 cm.
downwards. Lower part of the thyroid
gland was found cut and separated.
Underneath the muscles were partly
cut. Upper part of trachea was partly
cut for a length of 2.5 c.m. and air
passages exposed. The wound was
directed from above downwards.
2. ‘C’ shaped incised wound with its
convexity towards the front 3 x 0.5
cm., muscle deep on the top of right
shoulder, just above the collar bone
and 3 cm. outer to the root of neck.
3. Two linear abrasions 2.5 x 0.1 cm.
and 2 x. 0.1 cm. over an area 6 x. 0.5
cm. and 1.5 cm. apart on the right side
of neck, the upper end of the upper
one was 1 cm. below the angle of jaw.
Both were in a same plain.
4. Incised wound 4 x 0.5 cm. bone
deep, horizontal on the front of middle
of right knee.
5. Abrasion 2 x 1 cm. on the right side
of forehead 1cm. above and inner toCrl.A.No.891/2005. : 8 :
the outer end of eye brow.
6. Abrasion 1 x 0.5 cm. on the right
side of forehead 3. 5 cm above the
injury No.5.
7. Abrasion 1.8 x 1 cm. on the left side
of face just above the lower jaw and
4.5 cm. outer to mid line.
P.w. 9 Sub Inspector recorded Ext.P1 First Information Statement
of Pw.1 and registered Ext.P1 (a) First Information Report. Pw.10
conducted investigation of the case. He spoke about the steps
taken by him in the course of the investigation. He also stated that
Ext.P12 scene plan was prepared by the Village Officer as
requested by him. Pw.11 who conducted part of the investigation
deposed that he had obtained Ext.P14 report from the Forensic
Science Laboratory. In the said report the Scientific Assistant had
found presence of blood on items 1 to 7 which were subjected to
chemical examination. The blood stains on items 1 to 6 were
found to be human in origin. Item No.7, (M.O.1 chopper)
contained only insufficient quantity of blood. Therefore its origin
could not be determined. However the Scientific Assistant stated
in his report that the blood found on items 1 to 6 and 8 belonged to
group ‘O’.
10. At the very outset it may be noticed that the accused did
not have a case of total denial of his involvement in the crime.
Crl.A.No.891/2005. : 9 :
Learned counsel fairly conceded that the defence set up before the
trial court was primarily based on a plea of act done out of grave
and sudden provocation. He submits that the prosecution evidence
itself will show that there was a previous incident involving the
deceased and the accused three or four days prior to the crime.
Pw.1 had categorically stated in Ext.P1 First Information Statement
itself that the crime was a sequel to an altercation between the
accused and the deceased in connection with an incident in which
the deceased had allegedly peeped into the bath room at the
residence of the accused while his wife (Dw.1) was changing her
dress after her bath. In this context learned counsel would invite
our attention to the evidence of Pws. 2 and 3 also. Of course,
Pw.4 had also spoken about such an incident before the Police,
though he had disowned every such statement before the court. It
is further pointed out by the learned counsel that the wife of the
accused was in fact cited by the prosecution as a witness (CW.2)
but she was not examined. The accused had examined her as a
witness on his side. In her deposition Dw.1 had stated that at about
7.15 p.m. on the day of the incident the deceased had come to their
residence when the accused was doing some repair work on his
hammer. According to Dw.2, the deceased picked up a quarrel
with the accused alleging that the accused had been spreading
stories about his involvement in the “peeping incident”. Dw.1
further went on to say that in the course of the altercation in the
Crl.A.No.891/2005. : 10 :
court yard of the house, the deceased had hit the accused on his
forehead. Before going away from the scene the deceased had
further challenged the accused and told him to do whatever he
could to stop him from telling the people what all he had seen in
the bathroom. Dw.1 deposed that her husband suddenly became
violent on hearing this and ran after the deceased. A little later she
heard about the incident.
11. The accused had examined Dw.2 also, who was stated
to be a neighbour. According to this witness , on the previous
evening while he was standing at the Kairali Junction the deceased
had come out of the toddy shop after consuming toddy. He asked
Dw.2 whether he had seen the accused (using an abusive
terminology). When Dw.2 asked as to why he was enquiring about
the accused, the deceased told him that he was going to finish
him (accused) off.
12. We have dealt with the above defence taken up by the
accused a little too elaborately only to consider the question
whether the accused would be entitled to get the benefit of
Exception 1 to Section 300 IPC. Significantly the prosecution has
not entirely succeeded in brushing aside the above defence theory
in toto. As has been mentioned by us earlier, all the prime
witnesses on the side of the prosecution had admitted about an
altercation between the deceased and the accused prior to the
commission of the crime. It is also more or less evident from the
Crl.A.No.891/2005. : 11 :
materials available on record that the deceased had committed
some voyeuristic mischief at the residence of the accused while
his wife was taking her bath, three or four days prior to the
incident. The specific mention made by Pw.1 about such an
incident in Ext.P1 itself cannot be ignored.
13. The only other question is whether the deceased had in
fact gone to the residence of the accused and picked up a quarrel
with the accused and assaulted him preceding the crime. It is true
that there is only the interested testimony of Dw.1 on this aspect.
But admittedly all the prime witnesses on the side of the
prosecution were unanimous in saying that the deceased and
accused had come running from the southern side towards the
church. It is the admitted position that the residence of the accused
is about 100 meters away on the southern side of the church. There
is nothing on record to show that the deceased was living on the
southern side of the church. Therefore it could be safely assumed,
as is vehemently contended by the learned counsel, that the
deceased had in fact gone to the residence of the accused and
picked up a quarrel with him and assaulted him as deposed by
Dw.1.
14. We have carefully perused the entire evidence on record.
We are satisfied that there is considerable force in the contention
raised by the accused about the incident that took place at the
residence of the accused immediately prior to the commission of
Crl.A.No.891/2005. : 12 :
the crime. We are therefore of the view that the defence version as
narrated above can be accepted. In that view of the matter the
conviction of the appellant under Section 302 has to be necessarily
altered and modified.
15. Having regard to the entire evidence on record, we are
satisfied that the accused can be given the benefit of Exception 1 to
section 300IPC. He is therefore convicted and sentenced under
Part I of Section 304 Indian Penal Code to undergo rigorous
imprisonment for 8 years and also to pay a fine of Rs.50,000/-. In
default of payment of fine appellant shall suffer imprisonment for
one more year. If the fine amount is realised, Rs.30,000/- shall be
paid to the mother of the deceased.
Appeal is allowed in part to the above extent.
A.K. Basheer
Judge
P. S. Gopinathan
Judge
an.