Manu, C.No. 2158 vs State Of Kerala
2023 Latest Caselaw 9291 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                  &
             THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                     CRL.A NO. 143 OF 2018
 AGAINST THE JUDGMENT IN SC 1009/2015 DATED 17.10.2017 OF
    II ADDITIONAL DISTRICT COURT & II ADDITIONAL MOTOR
                ACCIDENT CLAIMS TRIBUNAL ,KOLLAM

APPELLANT/ACCUSED:
          MANU, C.NO. 2158
          CENTRAL PRISON, TRIVANDRUM.

         BY ADV ADV.SAJITHA.M.J (STATE BRIEF)

RESPONDENT/COMPLAINANT:
          STATE OF KERALA
          REPRESENTED BY DGP,
          HIGH COURT OF KERALA
          BY ADV.E.C.BINEESH, PUBLIC PROSECUTOR
     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2023,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl. Appeal No.143 of 2018                2


                  P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                  -----------------------------------------------
                   Criminal Appeal No.143 of 2018
                  -----------------------------------------------
              Dated this the 25th day of August, 2023.


                               JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C. No.1009 of 2015 on the

files of the Additional Sessions Court, Kollam who stands

convicted for the offence punishable under Section 302 of the

Indian Penal Code (IPC) and sentenced to undergo

imprisonment for life has come up with this appeal, challenging

his conviction and sentence in the said case.

2. The accused is none other than the son-in-law

of the sister of the deceased, Rajendran. The accused was

residing with the family of his wife during the period when the

occurrence took place. The relationship between the accused

and his wife was not cordial, and prior to the occurrence, the

wife of the accused had left the company of the accused. The

accusation in the case is that in the morning hours of

09.05.2015, the accused went to the house of the deceased in

search of his wife alleging that his wife has been harboured

there; that when the wife of the deceased required the accused

to leave their house, the accused pelted a stone at the wife of

the deceased and that at about 2 p.m. on the same day, when

the deceased went to the house of the accused to talk to him

about the incident in which the accused pelted stone at his

wife, the accused struck on the head of the deceased with a

chopper at the northern courtyard of his house. It is also the

accusation in the case that when the deceased warded off the

strike with an aluminium bucket and secured the chopper from

the accused, the accused took a wooden rod from the kitchen

and hit the deceased using the same multiple times; that when

the deceased managed to secure the wooden rod from the

accused, the accused struck on the right leg of the deceased

using an iron rod, as a result of which the right leg of the

deceased was fractured and he fell down. It is also the

accusation in the case that the accused then struck on the

head of the deceased with the aluminium bucket, thrusted on

the fractured leg using the iron rod and thereafter took a

coconut grater from the kitchen and threw it over the head of

the deceased and fled away from the scene, as by the time,

people in the locality gathered at the scene hearing the hue

and cry. Though the deceased was taken initially to the

Government Hospital, Kottarakara and then to Gokulam Medical

College, Vengaramoodu on a reference from the Government

Hospital, he passed away on the way to the Medical College.

3. On the same day, on the basis of the

information furnished by Radhika, one of the younger sisters of

the deceased, the Ezhukone Police registered a crime, arrested

the accused and after investigation, laid a final report against

him alleging commission of the offence punishable under

Section 302 of the Indian Penal Code (IPC).

4. Later, on committing the accused for trial to

the Court of Session, as he pleaded not guilty of the charges

framed against him, the prosecution examined 21 witnesses as

PWs 1 to 21 and proved through them 20 documents as Exts.P1

to P20. MOs 1 to 7 are the material objects in the case. After

the prosecution evidence, when the accused was questioned

under Section 313 of the Code of Criminal Procedure (the

Code), he denied the incriminating circumstances brought out

in the evidence against him and stated that the deceased fell

down from "Vattakkunnu Mala" while chasing to beat him and

the death occurred on account of the said reason. Since the

Court of Session did not consider the case to be one fit for

acquittal under Section 232 of the Code, the accused was

called upon then to enter on his defence. The accused,

however, chose not to adduce any evidence. The Court of

Session, in the circumstances, on an appraisal of the materials

on record, found the accused guilty of the offence punishable

under Section 302 of the IPC and sentenced him for the said

offence. The accused is aggrieved by the decision of the Court

of Session and hence, this appeal.

5. Heard the learned counsel for the appellant as

also the learned Public Prosecutor.

6. The materials on record indicate that it is

based mainly on the evidence tendered by the ocular witnesses

namely PWs 1, 3 and 4 that the Court of Session convicted the

accused. The essence of the arguments advanced by the

learned counsel for the accused, in the circumstances, is that

the evidence let in by the said witnesses is not reliable and

trustworthy to base the conviction for an offence of this nature

on the said evidence. Alternatively, it was also argued by the

learned counsel that at any rate, even going by the evidence of

the said witnesses, they are not persons who have seen the

entire occurrence and the accused ought not have been

convicted based on their evidence. Per contra, the learned

Public Prosecutor supported the impugned judgment pointing

out that the evidence on record is sufficient to justify the

conviction of the accused.

7. The point that arises for consideration is

whether the conviction and sentence of the accused are

sustainable in law.

8. The first and foremost aspect to be considered

while dealing with the point is whether the death of the victim

is a homicide. PW11 is the doctor who conducted the post-

mortem examination on the body of the deceased and issued

Ext.P6 post-mortem report. PW11 deposed that altogether 31

ante mortem injuries were noted on the body of the deceased

at the time of post-mortem examination and that the death

was due to the blunt injuries sustained to the head and right

leg of the deceased. PW11 opined that the injuries found on the

body of the deceased could be caused by MO2 iron rod, MO3

aluminium bucket and MO6 wooden rod. The attempt on the

part of the counsel for the accused while cross-examining

PW11 was to make out that the accused was not the sole

assailant. There was no cross-examination on the evidence

tendered by PW11 that the death was a homicide. We,

therefore affirm the finding of the Court of Session that the

death of the victim is a case of homicide.

9. The next question is whether the prosecution

has established beyond reasonable doubt that it is the accused

who caused injuries resulting in the death of the victim. Let us

now examine the evidence tendered by the prosecution in this

regard. PW1 is the younger sister of the deceased who gave

the First Information Statement in the case. PW1 deposed that

on 09.05.2015, she went to the house of her elder sister, Ragini

to enquire about the health condition of Maniyan, the husband

of Ragini who was attacked by the accused a few days earlier,

as a result of which he sustained a fracture on his hand and

was admitted in the hospital. PW1 deposed that while she was

proceeding to the house of Ragini through the ridges of the

paddy field, she saw the accused beating the deceased in the

northern courtyard of his house with a wooden rod first and

then with an iron rod throughout his body; that the accused

then beat on the right leg of the deceased with the wooden

rod and broke his leg; that after sometime, he brought a

coconut grater from the kitchen and threw it over the deceased

and fled away from the scene, as by the time, the people in the

neighbourhood had gathered there. PW1 also deposed that she

was told by the people gathered there that before she reached

the scene, the accused attacked the deceased with a chopper

and the said attack was warded off by him with an aluminium

bucket. PW1 also deposed that on 06.05.2015, the accused

beat his wife and consequently, she left that house with their

children and on the evening of the same day, the accused beat

the father of his wife namely, Mani also and it is in that

occurrence, Mani suffered a fracture on his hand. PW1 also

deposed that on the morning hours of the date of occurrence,

the accused went to the house of the deceased in search of his

wife alleging that she is harboured there and threw a stone at

the wife of the deceased and the deceased went to the house

of the accused on the afternoon of the same day to confront

the accused on the said incident. PW1 identified MO1 chopper,

MO2 iron rod, MO3 aluminium bucket and MO4 coconut grater

used by the accused to inflict injuries on the deceased. As

noted, PW1 has not seen the occurrence in full. PW1 has only

seen the accused beating the deceased throughout his body

using a wooden rod as also an iron rod and thereafter throwing

a coconut grater on him. Even through PW1 was cross-

examined thoroughly by the counsel for the accused, according

to us, the evidence tendered by her as regards that part of the

occurrence which she saw has not been discredited in any

manner and the evidence tendered by PW1 as regards the

occurrence is consistent with Ext.P1 First Information

Statement given by her. That apart, on a close scrutiny of the

evidence of PW1, we find that she was giving a very natural

narration of the background of the occurrence as also the

occurrence which she saw.

10. PW3 is a neighbour of the accused. She resides

in a property situated on the western side of a vacant land

belonging to one Paru, which is situated on the immediate west

of the residential property of the accused where the occurrence

took place. There exists a plastic sheet fencing on the

boundary of the residential property of the accused. She

deposed that on the date of the occurrence, at about 2.00 p.m.,

while she was sitting on the ridge near his house along with her

mother and sister, she saw the deceased going to the house of

the accused. She deposed that on hearing verbal altercation as

also hue and cry from the house of the accused, she peeped

through a gap in the plastic sheet to the house of the accused

and saw the accused physically assaulting the deceased with a

chopper, a wooden stick and also an iron rod. She deposed that

her mother then ran out of her house to inform the neighbours

about the occurrence. She deposed that nobody could attempt

to save the deceased from the attacks of the accused as the

accused was in a bad temper and when people gathered at the

scene, he fled away from the scene after throwing the coconut

grater at the deceased. She deposed that she then went near

the deceased and gave him water. She deposed that when she

gave water to the deceased, she wanted to rub his chest and

when she kept her hand on his head for the said purpose, she

felt a deep wound on his head. PW3 identified MO6 wooden rod

used by the accused to beat the deceased. As in the case of

PW1, PW3 was also cross-examined thoroughly by the counsel

for the accused. The attempt of the counsel while cross-

examining PW3 was to elicit from her that it was not possible

for her to witness the occurrence on account of the plastic

sheet fencing on the boundary of the residential property of the

accused. It has come out in the cross-examination of PW3 that

it is ordinarily not possible to see what is happening in the

courtyard of the house of the accused from the house of PW3.

Though she stated in cross-examination that she disclosed to

the police that she witnessed the occurrence through the gap

in the plastic sheet, the investigating officer deposed that such

a statement was not made by her. PW3 also deposed in cross-

examination that the accused being a person who is a

perennial nuisance in the locality, she was irritated at him. PW4

is the mother of PW3. She too deposed that the accused was a

perennial nuisance in the locality and on the date of

occurrence, she saw the deceased going to the house of the

accused and that when she peeped into the courtyard of the

house of the accused through the gap in the plastic sheet on

the fence hearing the hue and cry, she saw the accused

beating the deceased using a wooden rod. A close scrutiny of

the evidence tendered by PWs 3 and 4 would show that as in

the case of PW1, these witnesses also have not seen the entire

occurrence. As stated by PW3, she was sitting along with PW4

and her sister on a ridge in front of their house and they

rushed towards the house of the accused only upon hearing the

hue and cry and what they deposed before court is that they

saw the incident through the gap in the plastic sheet fencing,

for nobody would dare to go near the scene whilst an

occurrence of this nature is taking place. We do not find any

reason to disbelieve PWs 3 and 4 merely for the reason that

they did not disclose to the police that they witnessed the

occurrence through the gap in the plastic sheet, for we do not

find that the same is a significant omission amounting to

contradiction in the background of the facts of this case.

11. PW5 is none other than the mother-in-law of

the accused and the sister of the deceased. She is not an

eyewitness to the occurrence. She deposed that the accused

belongs to a place called Kochuveli; that her daughter, who is

the wife of the accused was residing for sometime in the house

of the accused after their marriage; that as her daughter could

not withstand the harassment of the accused, she left the

company of the accused and came back to their house and that

after sometime, the accused also started residing in the house.

PW5 narrated in her evidence the occurrence in which the

accused broke the hand of her husband as also the occurrence

that took place on the morning hours of the date of occurrence

in which the accused threw a stone at the wife of the deceased.

PW5 deposed that the deceased had come to her house to

confront the accused about the occurrence that took place on

the same day. PW5 deposed that the wife of the deceased told

her over telephone that the deceased contacted his wife and

informed her that the accused attacked him and broke his leg.

PW5 deposed that she immediately rushed to her house and by

the time she reached the house, the deceased was lying on the

floor after the incident. PW5 deposed that she accompanied the

deceased to the hospital along with PW6, the mother of the

deceased, who also came to the scene on receiving information

about the occurrence.

12. PW7 is a neighbour of the accused who

deposed that when he along with his wife reached the scene of

occurrence on receiving information about the occurrence, the

deceased was lying on the floor and the accused was standing

there with a wooden rod and when after some time, he fled

away from the scene towards west. PW8 is another neighbour

of the accused. PW8 also gave evidence more or less on the

same lines with the evidence tendered by PW7. In addition,

PW8 deposed that he saw the accused beating the deceased

with a coconut grater and thereafter thrusted on the broken leg

with iron rod. Even though PWs 7 and 8 were cross-examined

by the counsel for the accused, their evidence is not seen

discredited in any manner.

13. PW9 is the attestor to Ext.P3 scene mahazar, in

terms of which the weapons used by the accused for inflicting

injuries on the accused were seized by the police. PW10 is the

doctor who treated the husband of PW5 who suffered fracture

on his hand at the hands of the accused. Ext.P4 is the wound

certificate issued by PW10. PW10 deposed that the husband of

PW5 was brought to her with a history "മന ആകമ ചതൽ വറകകഷ

കക ണ വടൽ വച 06.05.2015 ഏകദ ശ 7.30 p.m. ന"" . PW14 is the

husband of PW5 and the father-in-law of the accused. PW14

narrated that the occurrence took place on 06.05.2015. PW15

is the wife of the accused. PW15 gave evidence more or less on

the same lines of the evidence tendered by PWs 5 and 14.

PW16 is the wife of the deceased. PW16 narrated the

occurrence that took place in her house on the morning of the

same day in which the accused pelted a stone at her.

14. PW21 is the officer who investigated the crime.

He deposed that he seized the weapons used by the accused

which were marked in the proceedings as material objects from

the scene of occurrence. One of the documents proved by

PW21 is Ext.P20 report of the Forensic Science Laboratory.

Item No.10(c) is the hairs of the deceased collected at the time

of the post-mortem examination. Item No.16 is MO6 wooden

rod. It is recited in Ext.P20 that the hairs in item No.10(c) and

in item No.16 are identical and belongs to one and the same

male person. Similarly, item No.11 is the blue coloured jeans

worn by the accused at the time of occurrence. It is recited in

Ext.P20 that human blood belonging to group 'B' was found in

item No.11 which is the blood group of the deceased as stated

in Ext.P6 post-mortem certificate. PW21 identified the material

objects which have been seized by him from the scene of

occurrence.

15. The question to be examined now, is whether

the evidence aforesaid is sufficient to establish the charge that

it is the accused who caused the death of the victim, beyond

reasonable doubt. It is seen that the prosecution relies on the

evidence of PWs 1, 3, 4, 7 and 8 to establish the occurrence. It

relies on the remaining evidence only to corroborate the oral

evidence. As already noticed, all the aforesaid witnesses have

not seen the entire occurrence. PW1 has not seen the

occurrence from the very beginning. She could see only the

accused beating the deceased using the iron rod and also the

wooden rod multiple times throughout the body of the

deceased. Even PWs 3 and 4 could only see the said part of the

occurrence. As far as PW7 is concerned, by the time he

reached the scene, he could see only the accused standing in

the courtyard of his house with a wooden rod. As far as PW8 is

concerned, he could see the accused giving a blow on the head

of the deceased using a coconut grater and when the coconut

grater slipped away from his hand, the accused thrusted on the

broken leg of the deceased using the iron rod. The evidence

tendered by PWs 1, 3, 4, 7 and 8 are fully corroborated by the

evidence tendered by the remaining witnesses, including the

evidence tendered by PW11, the doctor who conducted the

post-mortem examination and Ext.P20 report of the Forensic

Science Laboratory.

16. Section 6 of the Indian Evidence Act provides

that facts which, though not in issue, are so connected with a

fact in issue as to form part of the same transaction, are

relevant, whether they occurred at the same time and place or

at different times and places. Section 6 recognizes the principle

of res gestae which enables the court to admit facts, which are

otherwise not admissible. The rationale in making such facts

admissible in evidence is on account of the spontaneity and

immediacy of those facts in relation to the fact in issue. In

other words, it is necessary that such facts must be part of the

same transaction, and if those facts are in relation to a

statement, the same must have been made contemporaneous

with the transaction or at least immediately thereafter. In this

context, it is relevant to point out that PW1 has also pointed

out in her evidence that when she reached the scene, she was

informed that before she reached the scene, the accused

hacked the deceased using a chopper and that the said attack

was warded off by the deceased using an aluminium bucket.

The relevant portion of her deposition reads thus:

"എന ട ചരവ എടത എറഞ ട ഓട അതനമൻപ മന കത ക(ടത അണകന കവടക+ന അണൻ കത ട എടത കവട തടഞ എന കവട അതയ കത ട+ൽ കക ണ എന പറഞ. അത ഞ ൻ എതനതന മൻപ +രന."

PW1 has not disclosed in her evidence as to who informed her

about the attack made by the accused on the deceased before

her arrival at the scene. She conceded that she has not seen

the said part of the occurrence. But her evidence as to the

particulars of the said part of the occurrence remains

unchallenged. According to us, inasmuch as the said evidence

tendered by PW1 pertains to the statements made by others

contemporaneous with the transaction, namely the occurrence

or at least immediately thereafter, who have witnessed the

occurrence, the said evidence is admissible and if that be so, it

could be said that the prosecution has established its case

beyond reasonable doubt. Needless to say, the argument

advanced by the learned counsel for the accused that the

prosecution witnesses have not given evidence on the entire

occurrence and the accused therefore, cannot be convicted, is

only to be rejected and we do so.

In the light of the discussion aforesaid, we do not

find any merit in the appeal and the same is, accordingly,

dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

YKB