Abdul Rahim @ Rahim vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.369 of 2018 on the files of the Court of the Additional Sessions Judge, Ottapalam, is the appellant. He stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC).

The accused is the youngest son of the victim, Kunji Muhammed Musaliyar. He was residing with the victim in their family house along with two of his brothers and their family. The victim sustained an injury on his head in the morning hours of 02.08.2017. The victim was initially taken to Nila Hospital, Pattambi and from there to Moulana Hospital, Perinthalmanna and he succumbed to the injury on the following day, while undergoing treatment in the latter hospital. A case was registered by Pattambi Police on 03.08.2017 in connection with the death of the victim based on the information furnished by Muhammed, the brother of the accused. Though the case was one registered initially under Section 174 of the Code of Criminal Procedure, the same was converted later as one under Section 302 IPC. The investigation in the case revealed that it was the accused who caused the death of the victim. A final report was accordingly filed in the case against the accused alleging commission of the offence punishable under Section 302 IPC. The accusation in the final report is that at about 7 a.m. on 02.08.2017, on account of the enmity the accused had towards the victim for having scolded and mocked him, the accused hit on the head of the victim with a brick and thereby caused the death of the victim.

On the accused being committed to trial, the Court of Session framed charges against him under Section 302 IPC, to which he pleaded not guilty. Thereupon, the prosecution examined 17 witnesses as PWs 1 to 17 and proved through them 18 documents as Exts.P1 to P18. MOs 1 to 3 are the material objects in the case. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same. The Court of Session, thereupon, on a consideration of the evidence on record, found that the accused is guilty of the offence for which he is charged, convicted and sentenced him to undergo imprisonment for life, and to pay a fine of Rs.50,000/-. The accused is aggrieved by his conviction and sentence in the case and hence this appeal.

Heard the learned counsel for the accused as also the learned Public Prosecutor.

The learned counsel for the accused submitted that there was no direct evidence in the case to prove the occurrence as alleged by the prosecution and the circumstances proved do not establish the guilt of the accused beyond reasonable doubt. It was also argued by the learned counsel, alternatively, that even if the court finds that there are materials sufficient to hold that an occurrence as alleged by the prosecution had taken place, it cannot be said that the appellant is guilty of murder. Per contra, the learned Public Prosecutor supported the impugned judgment.

The point that arises for consideration, therefore, is whether the circumstances proved in the case would establish the guilt of the accused beyond reasonable doubt.

In order to consider the point formulated for decision, it is necessary to refer to the relevant evidence in the case. PW1 is the wife of Muhammed, the brother of the accused. PW1 deposed that at about 7 a.m. on 02.08.2017, while she was working in the kitchen with Ramlath, the wife of the other brother of the accused, they heard a noise and the same appeared to them to be that of the accused and the victim and when they proceeded to the sit out of the house, the victim was found on a chair in an unconscious state. It was deposed by PW1 that the matter was informed by her to her husband immediately and he, in turn, took the victim to Nila Hospital, Pattambi. It was clarified by PW1 that she could not notice any injuries then on the body of the victim. Since PW1 did not give evidence consistent with the case of the prosecution, although the Public Prosecutor, with the permission of the court, put questions to PW1 in terms of Section 154 of the Indian Evidence Act, nothing further could be elicited from PW1 in the said questioning, except the fact that she saw a brick on the lap of the victim. In cross-examination, PW1 deposed that even though the accused was in the house on the previous day, she did not see him on the date of occurrence. It was also clarified by PW1 in cross-examination that the accused did not participate in the obsequies in connection with the death of the victim.

PW2 is the daughter of the brother of the victim. PW2 is residing about a kilometre away from the house of the victim. PW2 deposed that she saw the accused passing through the road in front of her house at about 8 a.m. on 02.08.2017. It was deposed by PW2 that since the accused does not usually pass by that way, she enquired with him the reason for using that road and the accused then replied to her that he gave a dose to his father.

PW3 is an auto-driver operating from an auto stand located about 30 meters away from the house of the victim. PW3 deposed that on the relevant day, the husband of PW1 called him to his house to take the victim to the hospital and what was informed to PW3 by the husband of PW1 then was that the victim fell down, and when PW3 went to the house of the victim, he saw the victim on a chair. It was deposed by PW3 that although the victim was not particular in going to the hospital, they forcefully took him to the hospital. Since PW3 also did not give evidence consistent with the case of the prosecution, he was questioned by the Public Prosecutor in terms of Section 154 of the Indian Evidence Act as well. In the course of the said examination, PW3 denied the suggestion made to him by the Public Prosecutor that he disclosed to the police that he saw the accused coming out of the house of the victim when PW3 went to the house hearing a scream from there. PW6 is a neighbour of the victim. PW6 deposed that he saw the accused passing through the road in front of his house towards the north between 7 a.m. and 9 a.m. PW6 deposed that he witnessed the recovery of MO1 brick by the police on the following day while preparing Ext.P3 scene mahazar.

PW10 was the doctor who examined the victim at Nila Hospital, Pattambi. PW10 deposed that he examined the victim at about 7.30 a.m. on 02.08.2017 at the casualty of the hospital and he referred the victim to Moulana Hospital, Perinthalmanna after giving first aid to the victim. PW9 was the doctor who examined the victim at 10.09 a.m. on 02.08.2017 at Moulana Hospital, Perinthalmanna. Ext.P6 is the wound certificate issued by PW9. The injury noted by PW9 on the body of the victim then as deposed by him in his evidence is as follows:

“contusion to the left parietal region, respiration was gasping in nature, patient was unconscious, unresponsive, pupils were dilated and fixed. CT scan head showed left parietal extradural haematoma and right parietal extradural haematoma and subarachnoid haemorrhage.”

It was deposed by PW9 that the alleged history was assault by an unknown person. PW9 opined that the injury could be caused with MO1 brick. In cross-examination, it was clarified by PW9 that it is a clear case of assault. PW16 was the doctor who conducted post-mortem examination on the body of the deceased. Ext.P15 is the post-mortem certificate issued by PW16. The ante-mortem injuries noted by PW16 on the body of the deceased at the time of post-mortem examination as deposed by her are the following:

“1.Contusion 6.5x6 cm involving full thickness of left temporalis muscle (seen on dissection).

Abrasion 2.5x0.5 to 1.5 cm on left side of top of head, 3.5cm outer to midline and 10.5 cm above the level of occipit with area of contusion 6x4x0.5 cm underneath and around.

Skull showed fissured fracture 10.5 cm. on left temporal and parietal bone with extra dural haematoma 6.5x5x0.5cm underneath.

Base of skull showed fissured fracture 1.8cm on left side of anterior cranial fossa.

Brain showed contusions 6x5x2cm under surface 2x1.5x0.5 cm tip of right temporal lobe. Subdural haemorrhage was present bilaterally more on right side. Multiple small brain stem haemorrhage, intraventricular haemorrhage and patchy subarachnoid haemorrhage also found bilaterally with narrowing of sulci and flattening of gyri.”

The opinion given by PW16 as to the cause of death of the victim was head injury. It was also deposed by PW16 that injury 2 is possible with MO1 brick.

PW14 was the Sub Inspector of Police, Pattambi. It was he who registered the case in connection with the death of the victim on 03.08.2017 based on the information furnished by the husband of PW1, Muhammed. Ext.P9 is the First Information Statement. PW14 deposed that it was he who held the inquest of the body of the victim and also prepared Ext.P3 mahazar and recovered MO1 brick from the house of the victim. PWs 15 and 17 are the police officers who conducted the investigation in the case. Among them, PW17 deposed that the accused was arrested on 07.08.2017 at Thirur. In cross-examination, PW17 stated that even though the brother of the accused stated in Ext.P9 that the accused is a person suffering from a mental ailment, the same was not revealed in the investigation.

From the evidence tendered by the witnesses referred to above, especially the doctor who examined the victim at Moulana Hospital, Perinthalmanna as also the doctor who conducted the postmortem examination, it is clear that the death is a homicide.

From the discussion of the evidence as made in the preceding paragraphs, the circumstances which stand fully established are the following:

(i) The death of the victim was a homicide.

(ii) The accused, who is the youngest son of the victim, was residing with the victim in their family house.

(iii) Even though the accused used to go out of the house occasionally for work, he was present in the family house on the night, preceding the date of occurrence.

(iv) PW1 heard noises similar to that of the victim and the accused from the sit out of the house at about 7 a.m. on the date of occurrence just before she saw the victim in an unconscious state on a chair in the sit out.

(v) When PW1 saw the victim on the chair at the sit out of their house, MO1 brick was found on his lap.

(vi) The injury sustained by the victim was found by PW9 and PW16 as one that could be inflicted with MO1 brick.

(vii) PW6 who is the immediate neighbour of the victim saw the accused passing through the road in front of his house by around 7 a.m.

(viii) PW2 who is residing about a kilometre away from the house of the victim saw the accused near her house at about 8 a.m. on the date of occurrence and on a query from PW2, the accused told her that he gave a dose to the victim.

(ix) The accused did not participate in the obsequies in connection with the death of the victim.

It is placing reliance on the said circumstances that the Court of Session came to the conclusion that the prosecution has established the guilt of the accused. While coming to the said conclusion, the Court of Session considered the evidence tendered by PW2 as an extra judicial confession made by the accused to her. We do not think that the evidence tendered by PW2 would amount to an extra judicial confession for, the statement is capable of conflicting interpretations. At the most, the said evidence can be regarded only as evidence to the effect that the accused told PW2 that he did something in relation to the victim.

It is trite that the following are the legal requirements to hold that an accused, in a case on circumstantial evidence, is guilty of the offence/s for which he is charged:

(1) that the circumstances from which the conclusion of guilt is drawn are fully established,

(2) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) that the circumstances are of a conclusive nature and tendency,

(4) that they should exclude every possible hypothesis except that the accused is guilty, and

(5) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

The pointed question to be examined in the light of the principles aforesaid is whether the circumstances established in the case on hand, as referred to above, would prove the guilt of the accused beyond reasonable doubt. On a careful analysis of the circumstances enumerated, especially the circumstance brought out in the evidence of PW1 that she heard a noise similar to that of the victim and the accused from the sit out of the house just before she saw the victim in an unconscious state on a chair in the said place, the circumstance brought out in the evidence of PW2 that the accused informed her that he gave a dose to the victim immediately after the occurrence, the circumstance that the accused who is the youngest son of the victim did not participate in the obsequies in connection with the death of the victim and the circumstance that he was absconding till 07.08.2017 would establish beyond reasonable doubt that the injury sustained by the victim was one caused by the accused, for the same would exclude every possible hypothesis except that it was the accused who caused the death of the victim, and the same would constitute a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and would show that in all human probability, the act must have been done by the accused.

The question that remains to be considered is as to the offence committed by the accused. Culpable homicide is murder only if the act by which the death is caused is one that must have been done by the accused with the intention of causing the death of the victim as provided for under the first limb of Section 300 IPC or with intention of causing a bodily injury to the victim as the accused knows to be likely to cause his death as provided under the second limb of Section 300 IPC or with the intention of causing a bodily injury to the victim which is sufficient in the ordinary course of nature to cause his death, as provided under the third limb of Section 300 IPC or with the knowledge that the act is so imminently dangerous that it must, in all probability, cause the death of the victim or cause such bodily injury as is likely to cause the death of the victim and committed such act without any excuse for incurring the risk of causing death or such injury as aforesaid, as provided under the fourth limb of Section 300 IPC. The circumstances proved in the case are not sufficient to hold that the accused intended to cause the death of the victim or that he intended to cause a bodily injury on the victim which is sufficient in the ordinary course of nature to cause death, for the prosecution does not attribute any motive for the same to the accused. The only motive attributed to the accused is that he did the alleged act owing to the fact that the victim scolded and mocked him. The circumstances proved in the case are also not sufficient to hold that the act was one committed by the accused with the knowledge that such an act would cause the death of the victim, for there is no evidence to show that the accused knew that a hit on the head of the victim would cause his death. It appears to us that the statement claimed to have been made by the accused to PW2 is a casual statement and it is not a statement expected of from a person who did an act which would fall under the fourth limb of Section 300 IPC. In other words, the act committed by the accused would not fall under the said limb of Section 300 as well. But at the same time, one who hits on the head of another with a brick shall certainly be attributed with the knowledge that he is likely by such act to cause death. If that be so, the act committed by the accused would fall under the third limb of Section 299 IPC and he is liable to be convicted under Part II of Section 304 IPC, for the expression “knowledge” used in the third limb of Section 299 IPC is nothing but bare awareness and not the same thing as intention that such consequences should ensue.

In the result, the criminal appeal is allowed in part, altering the conviction of the appellant under Section 302 IPC to Section 304 Part II IPC and he is sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/-, and to undergo simple imprisonment for a period of six months, in default of payment of fine.