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.
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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
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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