Faisal vs State Of Kerala

P.B.Suresh Kumar, J

Accused 1 and 2 in S.C.No.532 of 2012 on the files of the Court of Session, Manjeri are the appellants in the appeal. Among them, the first accused is the son of the second accused. The third accused is the mother of the first accused. The appellants stand convicted for offences punishable under Sections 302 and 201 of the Indian Penal Code (IPC).

The victim in the case is one Muhammedali. The pathway to the house of Mujeeb Rahman, the brother of the victim runs along the side of the residential property of the accused. There was a dispute between the family of the victim and the family of the accused over the right to use the said pathway. The occurrence which led to the death of the victim took place in front of the house of the accused in the said pathway at 6.30 p.m. on 07.01.2011. The case of the prosecution is that on the said day at about 5.00 p.m., when the father of the victim passed through the said pathway, accused 2 and 3 pelted stones on the father and when the victim and his younger brother questioned appellants about the said incident, the first accused caused the death of the victim as directed by the second accused by hacking on his left back with a chopper and that the accused caused disappearance of the evidence by washing the chopper and the bloodstained clothes worn by them at the time of occurrence. The allegation against the third accused is that it was she who abetted the appellants to commit the crime. The offences alleged against the accused were offences punishable under Sections 302, 201 and 109 read with Section 34 of IPC.

On the accused being committed to trial, the Court of Session framed charges against them, to which they pleaded not guilty. Thereupon, the prosecution examined 14 witnesses as PWs 1 to 14 and proved through them 19 documents as Exts.P1 to P19. Ext.D1 is a case diary statement and Ext.D2 is the remand report of the accused which were marked at the instance of the accused. MOs 1 to 6 are the material objects. When the incriminating evidence was put to the accused in terms of the provisions contained in Section 313 of the Code, they denied the same and pleaded that they are innocent. The Court of Session, on a consideration of the evidence on record, held that accused 1 and 2 are guilty of the offences for which they are charged, convicted and sentenced them to undergo imprisonment for life and fine for the offence punishable under Section 302 IPC and rigorous imprisonment for a period of 3 years and fine for the offence punishable under Section 201 IPC. The third accused was acquitted of the charges levelled against her. As noted, the accused are aggrieved by their conviction and sentence.

The second accused died during the pendency of the appeal.

Heard the learned Senior Counsel for the first accused as also the learned Public Prosecutor.

The essence of the elaborate arguments advanced by the learned Senior Counsel for the appellants was that the evidence on record do not establish the charges satisfactorily. According to the learned Senior Counsel, the evidence on record would only show that the deceased sustained the fatal injury in the course of a scuffle between two groups, and it is inappropriate in such cases to convict the appellants for the offence of murder. Inasmuch as the second accused suffered a sentence of fine, it was also argued by the learned counsel for the first accused who is one of the legal representatives of the second accused that the finding of the Court of Session that the second accused shared a common intention with the first accused to cause the death of the victim, is illegal, for there is absolutely no material to prove that the second accused shared a common intention with the first accused to cause the death of the victim, if at all it is found that the first accused caused the death of the victim. Alternatively, it was also argued by the learned Senior Counsel that even assuming that the fatal injury suffered by the victim was one inflicted by the first accused, he can be convicted only for culpable homicide not amounting to murder and not for murder, for his case, going by the evidence on record, would fall well within Exception 4 to Section 300 IPC.

Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the evidence let in by the prosecution, especially the evidence of PWs 1 and 2 would prove beyond reasonable doubt that it was the first accused who caused the fatal injury on the deceased. According to the learned Public Prosecutor, even though the injury was not inflicted on a vital part of the body, having regard to the nature of the injury, it cannot be said that the first accused had not intended to cause a bodily injury on the deceased which is sufficient in the ordinary course of nature to cause death.

The point that arises for consideration is whether the conviction and sentence of the appellants is sustainable in law.

Inasmuch as no argument was advanced by the learned Senior Counsel against the finding rendered by the Court of Session that it was a case of homicide, it is unnecessary to delve deep into that issue. The questions to be examined, therefore, are whether the prosecution has established its case that the appellants shared a common intention to cause the death of the victim and whether the first accused caused the death of the victim by hacking on his left back with a chopper in furtherance to the common intention shared by the appellants.

PW1 is the younger brother of the deceased. It was PW1 who lodged the First Information Statement in the case. PW1 deposed that on receiving information that the second accused pelted stones on his father, PW1 along with the deceased went to the pathway near the residence of the appellants and on questioning the said conduct, the appellants came out of the house. It was deposed by PW1 that as they were coming out of the house, the third accused gave a sickle to the first accused. It was deposed by PW1 that a wordy altercation took place thereupon between them followed by a scuffle and that the second accused and PW1 fell down in the said scuffle. It was deposed by PW1 that the second accused then made an exhortation "വ ട  വ  ലട  അ വ " and on hearing the same, the first accused hacked the deceased with the sickle. It was also deposed by PW1 that even though the deceased was taken to a hospital immediately, he succumbed to the injuries on the way. PW1 identified MO1 as the sickle with which the first accused hacked the deceased. In cross-examination, PW1 admitted that all the proceedings in respect of the pathway culminated in favour of the accused and the occurrence took place in the said pathway. It was also admitted by PW1 in his evidence that it was his brother and he who went near the house of the accused and it was only when they called the accused, accused 1 and 2 came out of their house to the disputed pathway and thereupon, they questioned the second accused on his conduct in pelting stones onto their father. PW1 also admitted in his evidence that a quarrel ensued when they questioned the second accused. PW1 admitted that when they went to the house of the accused, they knew that something untoward would occur, yet they went to question the accused. Even though PW1 denied the suggestion that the second accused suffered injuries in the occurrence, he admitted that the second accused fell down before the deceased sustained the fatal injury. PW1 also admitted that the deceased was also involved in the scuffle. PW1 further admitted that the accused did not maintain any enmity, especially towards the deceased.

PW2 is a person who is running a tailoring shop near the residence of the deceased. PW2 deposed that when he went to the scene of occurrence hearing the loud noise of PW1, the deceased, as also the appellants, he saw a scuffle among them and that he saw PW1 and the second accused falling. It was deposed by PW2 that while getting up from the ground, the second accused made an exhortation "വ ട വ  വലട  അ വ ", and on hearing the same, the first accused hacked the deceased with a sickle on the left back of the deceased. PW2 also identified MO1 as the sickle used by the first accused to inflict injury on the deceased and MOs 3 to 6 as the clothes worn by the accused at the time of occurrence. PW3 was the driver of the auto-rickshaw in which the deceased was taken to the hospital. PW3 deposed that at about 6.45 p.m., when he reached near the house of the deceased, a group of people interdicted his vehicle and required him to take the deceased to the hospital and he took the deceased accordingly to Korambayil Hospital.

PW11 was the doctor who conducted the post-mortem examination of the deceased. Ext.P9 is the post-mortem certificate issued by PW11. The injuries noticed by PW11 at the time of post-mortem examination, as deposed by him, are the following:

INJURIES (ANTE-MORTEM)

Incised wound 4.8x0.5cm left side back of chest oblique, lower inner square cut end 11cm outer to midline 21cm below top of chest. From the upper inner sharp cut injury another incised wound extended downwards and to the left 4x0.5cm (the ends were sharp). The inner wound entered the chest cavity cutting the 8th rib and then entered the left lung (4.4x0.3cm with contused square cut lower inner end). This extended up to its hilum with a total minimum depth of 7cm. The wound was directed downwards, forwards and to the left. The outer wound was muscle deep.

Abrasion 3x0.5cm back of left side of chest 1.5cm above the inner part of the above injury.

Abrasion 3x0.1cm back of abdomen right side 3.5cm outer to midline 4cm above hip bone.

Incised wound 2x0.5cm back of left palm vertical on and above proximal knuckle of middle finger, exposing the tendon.

Avulsed superficial incised wound 10x0.5cm back of left upper arm, avulsed inwards and downwards oblique lower outer end 8cm above central bony prominence of elbow.

Avulsed incised wound 2x1cm of left upper arm 2cm inner to lower part of injury No.5.

Avulsed incised wound 1.5x0.5cm, 1.5cm below and parallel to lower part of injury No.5 on left upper arm.

Avulsed incised wound 4x1cm back of left upper arm, oblique lower outer end 2cm above central bony prominence of elbow, reflected downwards and inwards.

Abrasion 0.6x0.3cm back of left forearm, 7cm below elbow.

Superficial incised wound inner aspect of right upper arm 4x0.1cm (upper inner) to 0.4cm (lower outer) with tailing for 2cm upper inner lower end 10cm below top of posterior axillary fold.

The opinion of PW11 as regards the cause of death was that the deceased died due to the injury sustained to his left chest, namely injury 1 and that the said injury is one that can be caused using MO1 sickle and further that injury 1 is sufficient in the ordinary course of nature to cause death. It was also deposed by PW11 that injuries 4 to 8 and 10 are injuries that could be caused by contacting with a sharp edged object and the remaining injuries could be caused by using the blunt portion of MO1 sickle. In cross-examination, PW11 clarified that the tip of MO1 is not sharp edged and its one end is blunt. PW11 also deposed in cross-examination that he noticed seven incised wounds on the body of the deceased and for causing the said injuries, seven separate contacts are necessary. It was also deposed by PW11 that the nature of injury 1 is such that it is possible to have been caused by entering the weapon from one direction and taking it back from another direction. PW11 also clarified that injury 1 is not on a vital part of the body and injury 4 is one that is possible by grabbing a weapon like MO1.

PW13 is the police officer who conducted a substantial portion of the investigation in the case. Among others, it was deposed by him that during the interrogation after the arrest, the first accused disclosed to him that he has kept a sickle in a place in the kitchen of his house, and on the basis of the said disclosure, when the first accused was taken to his house, he took out MO1 sickle from a place in the kitchen of the house and the same was seized by PW13 as per Ext.P5 mahazar. Ext.P5(a) is the disclosure allegedly made by the first accused which led to the seizure of MO1 sickle.

Similarly, it was deposed by PW13 that during the interrogation of the second accused after the arrest, he disclosed to PW13 that he has kept some clothes in a bucket in the bathroom of his house and when the second accused was taken to that place, he took out MOs 3 to 6 clothes kept in a bucket in the bathroom and the same were seized as per Ext.P6 mahazar. Ext.P6(a) is the disclosure allegedly made by the second accused which led to the seizure of the said material objects. PW14 is the police officer who took over investigation of the case from PW13, completed the same and submitted the final report. It was through PW14 that the report of the Forensic Science Laboratory in respect of the various objects sent for forensic examination, in the course of investigation, has been proved. Ext.P19 is the report. Item 1(b) in Ext.P19 report is tissues with hair of the deceased preserved at the time of post-mortem examination, item 2 is MO1 sickle and items 3, 4, 6 and 7 are MOs 3 to 6 clothes. It was deposed by PW14 that items 2 to 4 and 6 and 7 contained blood belonging to the deceased.

One of the main pieces of evidence on which reliance was placed by the prosecution to connect the appellants with the occurrence is the evidence tendered by PW13 as regards the recovery of MO1 sickle based on the alleged disclosure made by the first accused, for the bloodstains in MO1 sickle was proved to be that of the deceased. No doubt, it was deposed by PW13 that it is based on Ext.P5(a) disclosure that MO1 sickle was seized by him from the house of the accused. But, as noticed, it has come out in evidence that the house of the accused from which MO1 sickle was seized, was under lock and key of the police when the seizure was made and the said fact has been admitted by the PW13. If that be so, according to us, it cannot be said that the seizure of MO1 sickle from a place under the control of the police would fall within the scope of Section 27 of the Indian Evidence Act.

The specific case of the appellants as regards the occurrence is that a group of people including the deceased and others trespassed into the courtyard of their house and attacked the second accused and that the deceased sustained fatal injury in the course of the said attack. Although the suggestion made by the counsel for the accused on these lines to PW1 was emphatically denied by him, the evidence tendered by PW1 was attacked mainly on the ground that PW1 was one among the persons who attacked the second accused in the said occurrence. Similarly, it was also argued by the learned Senior Counsel that the evidence tendered by PW1 cannot be believed since he had a grudge against the accused on account of the dispute over the pathway between the families. Even though we are in agreement with the stand taken by the accused that the occurrence was one that was invited by PW1 and the deceased, we are unable to disbelieve the evidence tendered by PW1 that it was the first accused who caused the fatal injury to the deceased. It is all the more so, since the evidence tendered by PW1 in this regard was corroborated fully by PW2. The feeble argument advanced as regards the acceptance of the evidence tendered by PW2 is that he was close to the family of the deceased. We are unable to reject the evidence tendered by PW2 on that ground. We take this view also for the reason that the evidence tendered by PWs 1 and 2 is corroborated by the evidence tendered by PW3 who took the deceased to the hospital from a place near the residence of the deceased and the forensic evidence let in by the prosecution that the bloodstains contained in the clothes of the appellants recovered from their house, belonged to the deceased. We do not, therefore, find any infirmity in the finding rendered by the Court of Session that it was the first accused who caused the fatal injury to the deceased.

The next aspect to be considered is as to the nature of the occurrence. As noticed, there were a few litigations between the family of the accused and the family of the deceased pertaining to the right to use the pathway in which the occurrence took place and all the litigations culminated in favour of the accused. Even though there is no evidence in the case on hand to show that any of the accused pelted stones on the father of the deceased, it was categorically deposed by PW1 in his evidence that he went to the house of the accused along with the deceased to question them on the said incident and it was only then the appellants came out of their house. The relevant portion of the deposition reads thus:

"ത   ഴ യ ല    ഞങ  വ ലന സമയ  അ   ഇറങ   രനണ യ രന. വമ യ#  കട യ  ഫ(സല  അ രവട  #ട ന മന      കനത  ആണ   ണത  എന  പറഞ   ശര യ ലണ  (Q) അവത (A).   ങ  ല  ദ ച സമയത  അലല അ   ഇറങ   നത (Q) അവത (A).”

As admitted by PW1, the deceased and PW1 went to the house of the accused with the knowledge that if they question the accused in connection with the incident in which the accused pelted stones onto their father, there would certainly be some untoward incidents. The relevant admission in the evidence tendered by PW1 in this regard reads thus:

"ആ സമയ  ഒര  ചറ (പശ  ) ഉണ കവമന    ങ    ലത ന യ രന ലല(Q) അവത (A). എന ട  അ ലര ട  ല  ദ     തവനയ യ രന ലല   ങളവട ത#രമ   (Q) അവത (A).”

PW1 also admitted in his evidence that a quarrel ensued when they questioned the appellants about their conduct in pelting stones on their father, followed by a scuffle involving all the four, namely, the appellants, PW1 and the deceased. Even though PW1 denied the suggestion that the second accused suffered injuries in the occurrence, he admitted that the second accused fell down before the deceased sustained the fatal injury. Ext.P11 is the arrest and inspection memo of the second accused. It is noted therein that at the time of arrest, an injury was noted on the forehead of the second accused. The materials aforesaid would prove beyond reasonable doubt that there was a fight between the appellants on one side and the deceased and PW1 on the other side, and it is in the course of that fight that the first accused hacked the deceased. Inasmuch as the blood of the deceased was found on MO1 sickle, it has to be found that MO1 was the weapon used by the first accused to hack the deceased. But it is doubtful as to whether MO1 was a weapon that was brought by the first accused when he came out of the house, for going by the sequence of events spoken to by PW1, the occurrence was an unexpected one as far as the appellants were concerned and it started only with a wordy altercation. The weapon might have been one carried by the first accused or it must have been secured by him from the scene of occurrence. Needless to say, the injuries were inflicted in the course of the fight in which both sides were injured.

On the facts of this case, it cannot be said that the act committed by the first accused was a premeditated one. It has been established that the fight took place between the accused on one side and the deceased and PW1 on the other side and it was a sudden one that ensued in the heat of passion upon a sudden quarrel. The facts and circumstances would show that it was only after the second accused was injured and assaulted down by PW1 and the deceased, the first accused used the weapon. It is not clear from the materials on record as to whether the first accused intended to cause the death or cause a bodily injury as is likely to cause death on the deceased. When the said fact is not clear, the benefit of doubt ought to be given to the appellants. What is discernible from the materials on record is that the first accused used MO1 sickle in the course of the fight and the same resulted in the fatal injury caused to the deceased. In the circumstances, according to us, the first accused is certainly entitled to the benefit of Exception 4 to Section 300 IPC, for there is nothing on record to indicate that the first accused had taken undue advantage or acted in a cruel or unusual manner. If that be so, the first accused is liable to be convicted only under Part II of Section 304 IPC, as the occurrence would fall only under the limb “fourthly” in Section 300 IPC. Needless to say, the conviction of the first accused under Section 302 IPC is liable to be altered to Part II of Section 304 IPC.

Coming to the finding rendered by the Court of Session that the accused washed the clothes worn by them as also MO1 sickle, it is to be noted that there is nothing on record to prove that the appellants washed MO1 sickle and MOs 3 to 6 clothes with the intention of causing disappearance of the evidence. The conviction of the appellants under Section 201 IPC in the circumstances, is liable to be set aside.

Having regard to the sequence of events established in the case, it cannot be said that the appellants shared the common intention to cause the death of the victim. As already indicated, but for the conduct of PW1 and the deceased in picking up a quarrel with the accused, the accused would not have come out of their house in the first place and when they came out, even though PW1 and the deceased were expecting some untoward acts, there is nothing on record to infer that the appellants were expecting any untoward incident so as to share a common intention to cause the death of the victim. The conviction of the second accused and the sentence imposed on him for the offence punishable under Section 302 with the aid of Section 34 IPC is therefore liable to be set aside.

Even though imprisonment for a period of ten years is provided for the offence punishable under Part II of Section 304 IPC, having regard to the peculiar facts of this case as disclosed in the evidence, according to us, the adequate proportionate punishment for the offence would be rigorous imprisonment for a period of seven years and fine.

In the result, the appeal is allowed in part, setting aside the conviction of the appellants under Section 201 IPC and the conviction of the second accused under Section 302 read with Section 34 IPC. The second accused is acquitted of all the charges levelled against him. The conviction of the first accused under Section 302 IPC is altered 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, for the offence punishable under Section 304 Part II IPC.