Kerala High Court
Johny vs State Of Kerala on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
CRL.APPEAL NO. 42 OF 2013
AGAINST THE JUDGMENT DATED 24.12.2012 IN SC NO.836 OF
2010 OF THE ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM
APPELLANTS/ACCUSED 1 TO 3:
1 JOHNY
S/O GEEVARGHESE, VENKOTTU KIZHAKKETHIL VEEDU,
CHANNAPETTA VILLAGE.
2 SARAMMA, D/O.PODIYAMMA,
VENKOTTU KIZHAKKETHIL VEEDU,CHANNAPETTA
VILLAGE.
3 SOOSAMMA,
D/O.SARAMMA, VENKOTTU KIZHAKKETHIL
VEEDU,CHANNAPETTA VILLAGE.
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
KARAN SCARIA ABRAHAM
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM (THROUGH CIRCLE INSPECTOR OF
POLICE,ANCHAL POLICE STATION)
SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
2
Crl.Appeal No.42 of 2013
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 13.06.2024, THE COURT ON 20.06.2024 DELIVERED
THE FOLLOWING:
3
Crl.Appeal No.42 of 2013
P.G. AJITHKUMAR, J.
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Crl.Appeal No.42 of 2013
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Dated this the 20th day of June, 2024
JUDGMENT
The accused in S.C.No.836 of 2010 on the files of the
Sessions Court, Kollam are the appellants. They were
convicted and sentenced for the offences punishable under
Sections 447 and 304 Part II read with Section 34 of the
Indian Penal Code, 1860 (IPC). They assail the correctness
and legality of the said judgment in this appeal filed under
Section 374(2) of the Code of Criminal Procedure, 1973
(Code).
2. Heard the learned counsel for the appellants and
the learned Public Prosecutor.
3. The 1st appellant is the younger brother of Sri.Baby,
the deceased. They along with their respective family
members were residing in the neighbouring houses. They
were not on good terms, since there was a dispute concerning
a pathway. At about 3.30 p.m. on 02.08.2009 Sri.Baby was
doing agricultural works in his property, in front of his house.
The appellants came along that property. Sri.Baby questioned
them as to why they were walking along his property. The
appellants getting irritated, pushed down Sri.Baby. He had
heart ailments. As a result of the fall, he sustained a head
injury and became unconscious. He succumbed to the injury
which accelerated his heart disease.
4. Before the trial court, PWs.1 to 16 were examined
and Exts.P1 to P15 were marked. During the examination
under Section 313(1)(b) of the Code, the appellants denied all
the incriminating circumstances. Apart from stating that there
was no such incident, the 1st appellant submitted a statement.
He stated that while he was manuring rubber trees in his
property, he saw PW2 bringing PW3 to the house and after a
short while, the deceased was seen taken to a jeep. He along
with his neighbour Shaji went there, but by that time the jeep
left. He also stated that appellant Nos.2 and 3 were attending
a meeting of Kudumbsree at that time. DWs.1 and 2 were
examined on their side.
5. The trial court believed the evidence of PWs.1, 2 and
3 in regard to the incident. The other circumstances emerged
from the inquest report, scene mahazar and also the medical
evidence, the trial court concluded that the appellants trespassed
into the property of the deceased and pushed him down,
resulting in his death. The appellants were therefore convicted.
6. The learned counsel for the appellants would
submit that the evidence of PWs.1, 2 and 3 cannot be
believed for more than one reason. No medical evidence was
brought in although the deceased was taken to St.Joseph's
Hospital, Anchal from where only his body was taken for
postmortem. That evidence was suppressed for obvious
reasons. Only at 8.00 p.m. the F.I.statement was given and
delay for the same has not been explained. Ownership or
possession of the property, where the incident allegedly
occurred, are not proved by producing necessary documents.
PW2 did not state that the deceased was suffering from any
serious heart disease. Therefore, the alleged acts, even if
committed by the appellants, would not amount to an offence
punishable under Section 304, Part II of the IPC. To buttress
that contention, the learned counsel placed reliance on
Vijayan v. State of Kerala [1991 (1) KLT 325].
7. The learned Public Prosecutor, on the other hand,
would submit that the oral testimony of PW2, who is the
hapless wife of the deceased, can well be relied on. Except
natural variations and contradictions nothing to disbelieve her
veracity has come out. The contradiction in her evidence as to
beating of the deceased using a stick was well clarified and
that it is not a reason to discredit her veracity. PW3 apparently is
the close neighbour and her reaching the place of occurrence
soon after the incident cannot be doubted. There is no
inordinate delay in registering the crime. It is revealed from
the evidence that Sri.Baby was brought to the hospital dead
and that is the reason why there was no medical evidence
concerning his examination at the St.Joseph's Hospital,
Anchal. DW2, the local grama panchayat member, admitted
that everybody in the locality knew Sri.Baby as a heart-
patient. The 1st appellant is his brother. Hence, he as well as
his wife and daughter, the other appellants, inevitably, knew
about his ailment. Knowing that fact, the appellants pushed
down Sri.Baby and therefore they were liable for conviction
for the offence under Section 304 Part II of the IPC. Similarly,
the evidence on record proved convincingly that the property
where the incident took place was in the possession and
occupation of the deceased. It is thus contended by the
learned Public Prosecutor that the conviction is justified.
8. Indisputably, nobody else than PW2 saw the
incident. It is her version that she was standing on her
courtyard and Sri.Baby was engaged in menial agricultural
works in their property near the courtyard. The appellants
together came walking along that property, which Sri.Baby
questioned. Soon the appellants pushed Sri.Baby down. When
he fell, the 1st appellant was said to have taken a stick, but he
did not beat Sri.Baby. On hearing the hue and cry, people
from the neighbourhood started coming and the appellants
left the scene. It is stated that the 1 st appellant went towards
north and the other appellants towards south.
9. As told by PW2, PW1, who is her son-in-law, came
to the house. PW3 is an immediate neighbour. She deposed
that while she was in the backyard of her house, PW2 called
her. Therefore, she rushed to the house of PW2, and saw
Sri.Baby lying near the courtyard. She along with PW2 carried
Sri.Baby to the hall of that house. It is her further version that
soon PW1 and the jeep driven by PW7 Biju reached there. She
along with PW1 took Sri.Baby in that jeep to the hospital. At
the hospital, the Doctor who examined Sri.Baby pronounced
him dead. She did not see how Sri.Baby fell, but she was told
by PW2 about the incident. PW1 also claimed that he was told
over phone by PW2 about the incident.
10. There are a few contradictions in the evidence of
PW2, who alone is the witness to the incident. Of course, PW1
and PW3 were told by PW2 about the incident soon after.
The prosecution therefore, maintains that their evidence is
res gestae. PWs.1 and 3 were not available in the vicinity. The
communication to them about the incident is not as part of
the same transaction or as an utterance by PW2. A telling
contradiction was crept in Ext.P1 as to whether or not
Sri.Baby was beaten up by the 1 st appellant. Ext. P1
statement was given by PW1 based on the information he
gathered from PW2. Of course, she explained that the 1 st
appellant only attempted to beat and did not beat Sri.Baby.
While appreciating the evidence of PW2 that explanation may
be acceptable. But that along with the other circumstances
make it impossible to use the versions of PWs.1 and 3 as
res gestae.
11. Both PWs.1 and 3 deposed that at the hospital
Sri.Baby was examined by a Doctor and pronounced his
death. It was at about 4.45 p.m. But no document in relation
to that is produced. The Doctor who examined Sri.Baby was
not examined in court also. So, the first version regarding the
cause of Sri.Baby's injury was not brought in evidence. In that
context, the delay till 8.00 p.m. in giving Ext.P1 statement
becomes adverse to the prosecution. The question therefore is
in spite of such imponderables, can the version of PW2
regarding the incident be believed.
12. PW2 being the wife of the deceased, is an interested
witness. But her version regarding the incident is quite natural.
She deposed cogently the overt acts of the appellants. During
her cross-examination, the case suggested was that there was
nothing wrong with the appellants' passing along the property
of the brother. In the narration of the incident, no discrepancy
occurred in her evidence. The damage caused to the plantain
at the place of occurrence is described in the scene mahazar,
Ext.P4. It is indicative of the scuffle and fall of Sri.Baby and
that supports the version of PW2.
13. PW15 is the Professor, Forensic Medicine, Medical
College, Thiruvananthapuram. She held autopsy on the body
of Sri.Baby. Regarding the possible cause of injury at the right
side of the head of Sri.Baby a pointed query was put to her.
She explained that if the fall was on account of heart attack
and consequent fall in blood pressure, the fall would be
backward. If so, an injury to the right side head was
improbable. That also supported the version of PW2 that
Sri.Baby fell as pushed down by the appellants.
14. Persisting of a dispute concerning the pathway
between the appellants and Sri.Baby has come out in
evidence. When it is stated that the appellants passed across
the property of Sri.Baby, his objecting to it is therefore
natural. PW2 asserted that an altercation occurred and that
ensued in the appellants pushing Sri. Baby down. When the
attending circumstances mentioned above fully supported that
version, there can be no hesitation in believing the oral
testimony of PW2 concerning the manner in which Sri. Baby
sustained injury.
15. The appellants No.2 and 3 set up a defence of alibi.
They contended that they were attending a meeting of the
local Kudumbasree unit during the relevant time. DW2, the
local panchayat member, deposed to that effect in court. She
stated that appellant Nos.2 and 3 attended the meeting,
which commenced at 3.00 p.m. and only on knowing about
the illness of Sri.Baby, they left from the meeting place. She
also testified that she informed that fact to the investigating
officer when he arrested appellant Nos.2 and 3. Nonetheless,
the trial court did not trust DW2. Non production of the
minutes of the meeting and inherent infirmity in her evidence
were the reasons to disbelieve her. In order to make good
that lacuna, the appellants filed Crl.M.A.No.1 of 2024
producing therewith a copy of the minutes of the
Kudumbasree unit dated 02.08.2009. During the course of
arguments, the learned counsel for the appellants submitted
that he was in possession of the original register also.
16. Even if the said register is accepted in evidence,
that will not help the appellants to prove the plea of alibi. The
incident occurred at about 3.30 p.m. The meeting place is not
far away. When it is stated that the meeting commenced at
3.00 p.m. and ended only at 5.00 p.m., her testimony cannot
be acted upon without independent corroboration. The
register now brought up was in her custody all throughout. If
it was a genuine document, it could have been produced
during the trial. DW2 is a person apparently interested and
made attempts to save those appellants from prosecution.
When she came as a defence witness and gave evidence but,
without producing the register in original, placing trust on her
evidence is all the more difficult. Her evidence is insufficient
to prove the plea of alibi by appellants No. 2 and 3. DW1, who
claimed to have reached the place of occurrence along with
the 1st appellant soon after the incident did not state that
appellant Nos.2 and 3 were actually attending such a meeting
during the relevant time. That also is a reason to disbelieve
DW2. Hence, I find no reason to interfere with the conclusion
arrived at by the trial court that Sri.Baby was pushed down by
the appellants and he sustained a head injury and became
unconscious.
17. PW15 on the basis of postmortem findings opined
that Sri.Baby died due to occlusive coronary artery disease.
PW15 also stated that the trauma could have accelerated the
disease process and precipitated death. The statement and
opinions of the witnesses to the inquest as recorded in Ext.P3
inquest report have been extensively discussed and relied on
to a certain extent by the trial court to support its finding that
the death was a homicide. Those statements which were
recorded by the Circle Inspector of Police during investigation
cannot be used as evidence in proof of the cause of death.
From the evidence of PW15, there cannot be any doubt that
the death was due to coronary artery disease. The trauma on
account of the fall and head injury might have accelerated it.
The question in the above factual scenario is, can the death
be a homicide and the appellants had the knowledge that they
were likely, by their act, to have caused the death of Sri.Baby.
18. This Court in Vijayan (supra) held as follows:
"4. xx xx Then the only question is whether death was
caused by doing an act with the knowledge that he is
likely, by such act, to cause death or not. If the
appellant was aware of the fact that the deceased was a
heart patient (even if the prosecution case that the
deceased was a heart patient is true), he cannot be
fixed with the knowledge that the push and fall are
likely to cause death. Therefore, conviction under
Section 304 of the IPC is out of question."
19. PW2 deposed that Sri.Baby had chest pain often,
but he had no much ailments. The prosecution, apart from the
evidence of PWs.1 to 3, placed reliance on the version of DW2
also to prove that the appellants knew about the heart
ailment of Sri.Baby. Of course, DW2 deposed that the local
residents knew about the heart disease of Sri.Baby. But that
would not serve the purpose. Indisputably, the appellants
were in inimical terms with Sri.Baby, despite being near
relatives. Even PW2, the wife did not state about the medical
examination and treatment of Sri.Baby for heart disease. No
document regarding his heart disease is produced. In the
circumstances, it is not possible to attribute active knowledge
to the appellants about the heart disease of Sri.Baby. Applying
the aforementioned principle of law, the appellants cannot be
held responsible for an offence punishable under Section 304,
Part II of the IPC. The offence for which they are responsible
is under Section 323 of the IPC.
20. The allegation that the appellants trespassed into
the property of the deceased was also contested. The place of
occurrence noted in Ext.P4 is near to the courtyard of the
deceased's house and within the boundary structure. The
tenor of the cross-examination of PW2 and other witnesses is
that walking along the brother's property cannot be a wrong.
Therefore, the possession of the property by Sri.Baby stands
established. The incident occurred at Sri.Baby's property and
the entry there in the circumstances of the case amounted to
a criminal trespass. Hence, I hold that the appellants are
liable for conviction under Sections 447 and 323 of the IPC.
21. Each of the appellants was under detention in
connection with this case prior to and post conviction. The
substantive sentence for the offences under Sections 447 and
323 of the IPC can be confined to the said period. The
appellants are further ordered to pay a fine of Rs.1,000/- each
for the said offences. The default sentence shall be fifteen
days simple imprisonment each.
The appellants are convicted and sentenced accordingly.
The appeal is allowed to the above extent.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
APPELLANT ANNEXURES
Annexure A1 A COPY OF THE PAGE NO 19 OF THE
MINUTES BOOK OF THE SNEHASANGAMAM
KUDUMBASREE MEETING DATED 02.08.2009.
