Kerala High Court
Jameen Shah, Convict No.2320, Central ... vs State Of Kerala, Represented By The ... on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:78282
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
CRL.A NO. 435 OF 2018
AGAINST THE JUDGMENT DATED 23.12.2017 IN SC NO.463
OF 2008 OF THE ADDITIONAL SESSIONS COURT-I,
PATHANAMTHITTA
APPELLANT/ACCUSED:
JAMEEN SHAH, CONVICT NO.2320,
CENTRAL PRISON, TRIVANDRUM
BY ADV.SRI.SAJEEV T.PRABHAKARAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY DGP,
HIGH COURT OF KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.10.2024, THE COURT ON 23.10.2024, DELIVERED THE
FOLLOWING:
Crl.Appeal No.435 of 2018
-: 2 :-
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.435 of 2018
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Dated this the 23rd day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The sole accused in S.C.No.463 of 2008 on the files of
the Court of the Additional Sessions Judge-I, Pathanamthitta, is the
appellant in the appeal. He stands convicted and sentenced for the
offences punishable under Sections 323, 324 and 302 of the Indian
Penal Code (IPC).
2. The appellant is a butcher by profession. He has
two children, a son and a daughter. The daughter of the appellant,
at the relevant time, was a nursing student. On 14.09.2005, without
informing the appellant and without preparing lunch for him, the
wife of the appellant left home to bring back their daughter from the
hostel and returned only by about 5.45 p.m. When they returned,
the appellant questioned his wife about her conduct in leaving the
house without informing him and without preparing lunch for him.
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This conversation between the appellant and his wife culminated in
the occurrence which is the subject matter of the case. The son of
the appellant was killed and his wife was injured in the occurrence.
A case was registered by the Pathanamthitta Police in connection
with the occurrence on the information furnished by one Shaiju and
the investigation in the case revealed that it was the appellant who
caused the death of his son and injury to his wife. The accusation in
the final report is that, annoyed by the conduct of his wife in leaving
the house without informing him and without preparing lunch for
him, the appellant beat his wife and when she fell down, he stabbed
on her left thigh. It was further alleged in the final report that when
Jaseem, the son of the appellant, attempted to take the wife of the
appellant to the hospital, the appellant inflicted a stab wound on the
right clavicle of Jaseem, resulting in his death.
3. On the appellant being committed to trial, the
Court of Session framed charges against him under Sections 323,
324 and 302 IPC. The appellant denied the charges and pleaded not
guilty. The prosecution thereupon examined 15 witnesses as PWs 1
to 15 and proved through them 17 documents as Exts.P1 to P17.
Ext.D1 is the portion of the case diary statement of the wife of the
appellant. MOs 1 to 5 are the material objects in the case which
were identified by the witnesses, of which MO1 is a knife with which
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the appellant allegedly stabbed the deceased. When the appellant
was questioned thereupon under Section 313 of the Code of
Criminal Procedure (the Code), on the circumstances appearing in
the evidence against him, the stand taken by the appellant was that
while he was talking to his wife in the courtyard of their house, the
deceased gave him a kick from behind and he fell down on account
of the same. It was stated by the appellant that as it was not
possible to hold his son, the latter being a Karate black belt holder,
the appellant went inside the house and while doing so, the son
threw a stone at him. It was also stated by the appellant that he
then took out a knife from the kitchen and came back to the
courtyard and when the son saw the appellant with the knife, he
took a brick to attack the appellant. It was also stated by the
appellant that there occurred a scuffle thereupon between him on
one side and the deceased and his friends on the other side and the
appellant fell down in the course of the said scuffle with his face
hitting on the ground and he became unconscious. According to the
appellant, he does not know anything that happened thereafter. The
relevant portion of the statement of the appellant reads thus:
"..........അപ ൾ ഒര കലകക ണ എക പടലക ജസ എറയകയ യരന. ഞ ൻ
അടകളയൽ പപ യ പച ത എടതകക ണ ഇറങകയ യരന. ഞ ൻ മറത ഇറങ.
മറവ പറ ഡ പ-രന ഭ ഗത കജസമ കടക ര നൽകകയ യരന. എക കയൽ
പച ത ഇരകനത കണ ജസ എകന എറയ ൻ ഇഷക എടത. കജസമ ക
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കടക ർ എക അടത വന. അവർ എകന പട ച. എക കയകല പച തക പട ച.
അഞ മ നപ> ള പട യ വലയ നടന. അതൽ ഒര ൾ എക ക ലൽ ത> യട. ഞ ൻ
മഖ അട ച വണ. അപനര എനക പA ധമ ല ത യ. കറച കഴഞ പA ധ
വനപ ൾ വവക 6 ½ മണ കഴഞ. എഴപനറപ ൾ എക മ>
കപ > യടണ യരന. ........"
As the Court of Session did not find the case to be one fit for
acquittal under Section 232 of the Code, the appellant was called
upon to enter on his defence and he chose not to adduce any
evidence. Thereupon, on a consideration of the materials on record,
the Court of Session found the appellant guilty of the charges,
convicted and sentenced him among others for imprisonment for
life. The appellant is aggrieved by his conviction and sentence,
hence this appeal.
4. Heard the learned counsel for the appellant as also
the learned Public Prosecutor.
5. The learned counsel for the appellant contended
that the evidence in the case does not establish that the appellant
has consciously inflicted the fatal injury on the deceased. According
to him, the injury was one caused by accident in the course of the
scuffle between the appellant on one side and the deceased and his
friends on the other side. To bring home the said point, it was
argued by the learned counsel that had this been a case where the
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appellant had inflicted the fatal injury consciously, the width of the
injury would have been proportionate to the width of the blade
portion of MO1 knife. It was pointed out that the width of the blade
portion of the knife is 2 cm, whereas, the width of the injury is 6cm.
It was argued that such an injury would not be caused on account of
direct infliction. It was also argued by the learned counsel for the
appellant that even if it is found that the fatal injury sustained by
the deceased was one caused by the appellant, the evidence would
show that it was on account of a grave and sudden provocation of
the deceased that the appellant happened to cause such an injury.
In that event, according to the learned counsel, the appellant cannot
be convicted for murder and can be convicted only for culpable
homicide not amounting to murder. Per contra, the learned Public
Prosecutor supported the impugned judgment pointing out that the
proved facts would establish beyond reasonable doubt that the
appellant intended to cause the death of the deceased or at least
cause a bodily injury sufficient in the ordinary course of nature to
cause his death and the fatal injury was inflicted accordingly. It was
also argued by the learned Public Prosecutor that the appellant
cannot be heard to contend that the fatal injury sustained by the
deceased was caused by the appellant on account of grave and
sudden provocation, for, there is nothing on record to indicate that
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the deceased provoked the appellant in any manner whatsoever.
6. The appellant does not dispute his presence at the
scene at the time of occurrence. The appellant also does not dispute
that the fatal injury sustained by the deceased was one produced by
MO1 knife carried by the appellant at the time of occurrence. The
dispute is only as to how the fatal injury was caused to the
deceased. While it was asserted by the prosecution that the fatal
injury was one caused by the appellant with the intention of causing
the same, the assertion of the accused was that the same was not
one caused intentionally, but one caused in the course of the scuffle
between him and the deceased.
7. The point that falls for consideration, in the
circumstances, is whether the injury caused to the deceased was
one inflicted by the appellant with the intention of causing his death
or a bodily injury sufficient in the ordinary course of nature to cause
his death .
8. The point: The prosecution has attempted to
prove the occurrence through PW1, PW2, PW3 and PW5. Among
them, PWs 1 and 5 were the friends of the deceased, PW2 is the
wife of the appellant and PW3 is the daughter of the appellant. In
order to get a clear picture of the sequence of events that led to the
death of Jaseem, it is necessary to start with the evidence of PW3.
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9. PW3 deposed that when she returned home with
her mother on the relevant day, the appellant did not allow her
mother to enter the house and in the course of the verbal
altercation that took place between them thereafter, the appellant
beat her mother. It was deposed by PW3 that she then screamed
and on hearing the scream, the deceased came there and tried to
separate them, and the appellant then attempted to beat the
deceased. It was deposed by PW3 that the deceased then pushed
the appellant away and on being offended by the said conduct of
the deceased, the appellant went inside the house and came out
with a knife. It was deposed by PW3 that by that time, the deceased
and her mother ran towards the northern side of their house where
the brother of the appellant was residing and the appellant then
chased them and beat down her mother and stamped her. It was
deposed by PW3 that since the deceased came there by that time,
PW3 proceeded towards him to pursue him not to come near the
appellant and while doing so, she heard the scream of her mother
that she had been stabbed. It was deposed by PW3 that having
realised that the appellant stabbed her mother, PW3 being three
metres away, returned to her mother and by that time, the
appellant was chasing the deceased with a knife in his hand. It was
deposed by PW3 that she thereupon took her mother to the front
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room of the house of the brother of the appellant where the wife of
the brother of the appellant tied her wound. It was deposed by PW3
that the deceased came there by that time through the back side of
the said house and her mother then instructed him to arrange a
vehicle to go to the hospital. It was deposed by PW3 that the
deceased then left the house for the said purpose and after some
time she saw the deceased on the road and the appellant
brandishing the knife carried by him against the deceased. It was
deposed by PW3 that the deceased was carrying a piece of brick in
his hand then. It was deposed by PW3 that even though she
requested the appellant to refrain from attacking the deceased, the
appellant continued to brandish the knife carried by him, and the
deceased then told the appellant that if he does something, he will
throw the brick on him and ignoring the same, the appellant
continued to brandish the knife towards the deceased. It was
deposed by PW3 that as she heard the cry of pain of her mother,
she returned to the place where her mother was sitting and when
she came back after sometime to the road, she saw PW1, a friend of
the deceased, taking him in a bike ridden by one Shafeek and the
appellant chasing them. It was deposed by PW3 that thereupon she
took her mother to the Government Hospital, Pathanamthitta and
when they reached the said hospital, she saw her brother being
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carried from the said hospital in an ambulance. It was deposed by
PW3 that on the morning of the following day, she came to know
that her brother is no more. Even though PW3 was thoroughly cross-
examined by the counsel for the appellant, nothing was brought out
to discredit the above evidence tendered by her.
10. As noticed, PW3 had not seen the appellant
inflicting the injury on the deceased as also on her mother. PW2
gave evidence almost on the same lines of the evidence tendered
by PW3. In addition, PW2 deposed that when she fell down on
account of the attack of the appellant, the appellant inflicted a stab
injury on her left thigh with his left hand. PW2 identified MO1 as the
knife used by the appellant to stab her. As in the case of PW3, PW2
also could not be discredited by the counsel for the appellant in any
manner whatsoever.
11. PW1 deposed that while he was standing on the
road in front of the house of the appellant, the deceased came there
and required him to arrange an autorickshaw to take his mother to
the hospital and went back, and in the meanwhile, since Shafeek, a
friend of the deceased proceeded to arrange an autorickshaw, PW1
followed the deceased to the house of the brother of the appellant
and then PW1 saw the mother of the deceased with an injury. It was
deposed by PW1 that PW2 then screamed that the appellant is
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coming with the knife and on hearing the scream, the deceased ran
away to the road and the appellant chased him. It was deposed by
PW1 that on the road, the appellant exhorted that he would kill the
deceased also and the deceased responded that if the appellant
attempts to do so, he will beat him. It was deposed by PW1 that the
appellant then took out the knife and when the appellant took out
the knife, the deceased kicked him. It was deposed by PW1 that
when the appellant attempted to stab the deceased again, Hazeem,
the son of the brother of the appellant caught hold of the hand of
the appellant. The deceased then threw a stone which he carried
onto the appellant and the same fell on the hand of Hazeem. It was
deposed by PW1 that the appellant then stabbed on the right
portion of the chest of the deceased with his left hand and the
deceased fell down on account of the impact of the stab. It was
deposed by PW1 that he along with PW5 then caused the deceased
to sit on the back seat of the bike which was brought there by that
time by Shafeek. It was deposed by PW1 that even though the
appellant attempted to chase the bike to stab the deceased again,
since the former fell down, he could not succeed in the said attempt.
It was deposed by PW1 that he followed the bike to the Government
Hospital, Pathanamthitta where the deceased was being taken and
at the hospital, after giving first aid, the deceased was referred to
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the Medical College and that PW1 along with PW5 and Shafeek took
the deceased to Pushpagiri Medical College in an ambulance and
since the deceased showed restlessness on the way, they took the
deceased to Muthoot Hospital, Kozhenchery located on the way and
at that hospital the doctors informed them, after examining Jaseem,
that he is no more. It was confirmed by PW1 in his evidence that it
was he who lodged Ext.P1 First Information Statement. PW1 also
identified MO1 as the weapon used by the appellant to stab the
deceased. As in the case of PW2 and PW3, the learned counsel for
the appellant could not discredit the said evidence tendered by PW1
in any manner whatsoever.
12. PW5 was the person in whose bike the deceased
was taken to the Government Hospital, Pathanamthitta. PW5
deposed that at about 5.30 p.m. on the date of occurrence, his
friend Shafeek came to his house to get the key of his bike to
arrange an autorickshaw to take the mother of the deceased to the
hospital, informing him that she was stabbed by the appellant. It
was deposed by PW5 that he then gave the key of his bike to
Shafeek and followed him to the road. According to PW5, by the
time he reached the road, he saw the deceased there and blood was
coming out of his mouth. It was deposed by PW5 that the appellant
was then coming towards the deceased with a knife and in the
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meanwhile, the deceased was carried in the bike by PW1 and
another. It was deposed by PW5 that even though the appellant
attempted to hack the deceased, PW1 warded off the attack and the
appellant then fell down on the road and whilst so, Shafeek took the
deceased to the hospital in the bike.
13. Among the remaining witnesses, only the evidence
of PW8, the doctor who examined the deceased at the General
Hospital, Pathanamthitta and PW13, the doctor who conducted the
postmortem examination on the body of the deceased, are relevant
in the context of the submissions made by learned counsel for the
appellant. Among them, PW8 deposed that she examined the
deceased who was brought to the hospital with a stab wound on the
right side of his chest with torrential bleeding from the wound site
and oral cavity and he was referred to a major hospital. It was
deposed by PW8 that the cause of the injury was stated to her to be
"ഇന ഉപKശ 5 മനറന മൻപ സNന അചൻ കതയതൽ വച". It was PW8 who
examined PW2 who was brought to the same hospital after some
time and PW8 deposed that PW2 was brought there with an incised
wound 4 x 1 x 1 cm on the upper anterior aspect of her left thigh
and that the cause of injury was stated to her to be "ഇന ഉപKശ 15
മനറന മൻപ ഭർത വ കതയതൽ വച". PW13 deposed that the deceased
died due to the injury to the vessels of neck and trachea. The fatal
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injury was described by him in his evidence as follows:
"incised wound 6cmx2cm bond deep with sharply cut ends
and irregular margins at the upper end situated on the front of
right side of chest near the shoulder, 6.5 cm from the
clavicular area and 13 cm from the midline at sternal angle
and is slightly obliquely placed."
PW13 deposed that the said injury could be produced by MO1 knife.
In cross-examination, when PW13 was asked as to whether the
width of the external wound will correspond with the width of the
knife in a simple thrust and withdrawal, the answer given by PW13
was that if the deceased was in a stationary position, the width of
the external wound will correspond with the width of the knife. It
was however added by PW13 that if the weapon is moved or if there
has been a movement of the deceased, the wound may be of a
larger size than the size of the weapon. Even though the learned
counsel for the appellant put a question to PW13 as to whether the
above described injury would be caused in a scuffle, PW13 gave a
technical answer. The relevant question and answer reads thus:
"if a person brandishing a knife against an offended person in
self-defence and a third person interferes and trying to snatch
the knife and accidentally the knife falls on the site of the injury,
the first injury is possible, am I correct (Q). This is a very
peculiar injury and it is difficult to reproduce such an injury. A
simple stab cannot produce an injury, the movement of the
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victim also must have contributed to this injury. (A)
14. The evidence tendered by PWs 1, 2, 3 and 5 as
referred to above, especially the evidence of PWs 1 and 5 that even
after inflicting the fatal stab, the appellant attempted to stab the
deceased again by chasing the bike in which the deceased was
being taken to the hospital, would establish beyond reasonable
doubt that the fatal injury was inflicted by the appellant on the
deceased consciously, with the intention of causing such an injury. It
has come out in evidence that MO1 is a wooden handled knife
having a length of 16.3 cm for its pointed blade portion with sharp
edges on both sides up to the point. Similarly, it has come out that
the fatal injury was on a vital part of the body of the deceased.
Having regard to the nature of MO1 and the site of the injury, we
have no doubt in our minds that the appellant intended to cause
bodily injury on the deceased which was sufficient in the ordinary
course of nature to cause death. As noted, the injury was not caused
when the appellant brandished the knife which he was carrying in
self-defence and when someone else tried to snatch away the knife
from him as suggested by the appellant to PW13. On the other
hand, the appellant was following the deceased with the knife and it
was in self-defence that the deceased took out a brick in his hand
and threatened that he would throw it at the appellant if the latter
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attacks him. It has come out in evidence that ignoring the fact that
the deceased was carrying a brick, the appellant proceeded and
attacked him. What was prevented by the others was the
subsequent attempt made by the appellant to attack the deceased.
The argument that since the width of the injury is far wider than the
width of the weapon, it has to be presumed that the injury
happened to be caused by accident, is also without any merit. As
clarified by PW13, the width of the injury would correspond to the
width of the weapon only if the injured is in a stationary position,
and if the injured jerks on receiving the stab, the width of the injury
would vary. Needless to say, the contention raised by the learned
counsel for the appellant that the fatal injury was sustained by the
deceased by accident, is only to be rejected and we do so.
15. Similarly, there is no substance in the argument
that the death was caused, whilst the appellant was deprived of the
power of self-control on account of grave and sudden provocation.
There is nothing on record to indicate that the deceased had
provoked the appellant in any manner whatsoever. The deceased
only intervened in the quarrel between the appellant and his
mother, when the former assaulted the latter and the deceased had
to push the appellant away since the appellant then attempted to
attack the deceased as well. Of course, it has come out in evidence
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that he kicked the appellant and threw a stone at him. In the light of
the evidence, the said acts on the part of the deceased would be
considered only as acts committed by him in self-defence.
In the facts and circumstances, there is no merit in the
appeal and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
ds 16.10.2024
