Vinod vs State of Kerala

Sasidharan Nambiar, J.—Appellant was convicted and sentenced for the offences u/s 302 of Indian Penal Code by Additional Sessions Judge, Kottayam in S.C.No.169 of 2002. He was sentenced to imprisonment for life. Appellant through Adv.Rajagopal Padipurackal filed Crl.A.No.1362 of 2003 challenging the conviction and sentence. Appeal was admitted on 30.9.2003. It was heard on 2.6.2006 and the appeal was dismissed confirming the conviction and sentence, rejecting the claim of the appellant that offence u/s 302 of Indian Penal Code is not attracted and at best only an offence u/s 304 of Indian Penal Code is involved. This appeal is filed by appellant from jail along with Crl.A.No.4081 of 2006, the petition to condone the delay without disclosing the filing of Crl.A.No.1632 of 2003. The appeal memorandum along with the application to condone the delay in filing the appeal was forwarded from Central Prison, where appellant was undergoing imprisonment, on 4.4.2006 and received in the registry of this court on 12.4.2006. Being a jail appeal, the delay was condoned on 25.5.2006. It came for admission on 8.6.2006. The fact that appellant had filed an appeal as early as in 2003 and that too through same counsel who defended him before the Sessions Court and was dismissed on merits by judgment dated 2.6.2006 was not brought to the notice of the Division Bench. Like all jail appeals, the application for delay was condoned and the appeal was admitted. As the appeal was admitted, learned counsel who subsequently filed vakalath for the appellant would submit that when the appeal from the prison was sent to the court on 4.4.2006, the appeal should be taken as filed on that date and as Crl.A.No.1632 of 2003 filed by an Advocate was then pending, this court should have ascertained from the accused whether he had instructed the said counsel to file Crl.A.No.1632 of 2003 and as that appeal was not filed as instructed by the appellant, this appeal should be heard and disposed on merits. As the factum of the filing of this appeal from the jail was not brought to the notice of the Division Bench when Crl.A.No.1632 of 2003 was heard and disposed on 2.6.2006, it cannot be said that disposal of Crl.A.No.1632 of 2003 is an illegality and therefore the judgment dismissing the appeal is to be eschewed. As the correctness of conviction and sentence was already considered by the Division Bench at the instance of the very same appellant, he is not entitled to have review of that judgment in this appeal. Still, in view of the assertion of the learned counsel appearing for the appellant that there is no evidence to confirm the conviction for the offence u/s 302 of Indian Penal Code and at the most the offence would only be u/s 304 of Indian Penal Code, the learned counsel was heard.

The argument of the learned counsel appearing for the appellant is that there was no intention for the appellant to cause the death of deceased Sasi and there is no evidence to prove that appellant inflicted the injury on the chest of the deceased which caused his death, with the intention to kill him and therefore even if death was caused by that injury, an offence u/s 302 of Indian Penal Code is not attracted. Learned counsel also argued that though PW2 and PW5 deposed on the overt acts on the part of the appellant, evidence of PW2 shows that he has no case that appellant took MO1 knife from his waist and stabbed the deceased, which is the case spoken to by PW5 and the evidence of PW5 that he saw the appellant taking the knife from the waist and stabbing the deceased cannot be believed. Learned counsel also argued that evidence of PW5 in cross examination shows that he was not aware of the weapons in the possession of the appellant and the deceased immediately before the injury was inflicted, and therefore there is no evidence as to how the injury was inflicted which caused the death of deceased Sasi. Learned counsel also argued that as the evidence of PW5 is that he was walking after crossing the bridge and he looked back hearing the sound, there is no chance for the witness to see the appellant stabbing the deceased as claimed by him and therefore that portion of his evidence is to be eschewed. Learned counsel further argued that though the evidence of PW2 is that appellant stabbed the deceased with Mo1 knife, the nature of the injury noted in Ext.P2 Post Mortem certificate will not corroborate his evidence as to how it was inflicted and therefore in any case, it is to be found that as there was no intention to inflict the injury which caused death of deceased Sasi, the conviction for the offence u/s 302 of Indian Penal Code is not sustainable and if at all the conviction is to be modified for the offence u/s 304 of Indian Penal Code.

We have gone through the entire evidence on record in this case. This court by judgment dated 2.6.2006, evaluated the entire evidence and found that the evidence of PW2 and PW5, which is trustworthy, establishes that the deceased was standing in front of the car along with PW2 when the deceased was proceeding in an autorickshaw and finding the deceased, appellant stopped the autorickshaw and got down from the autorickshaw and picked up quarrel with the deceased and there was a scuffle and the deceased fell on the gravel. When the deceased was standing up, appellant stabbed the deceased on his chest with MO1 knife. It was also found that evidence of PW5, who was walking along the road at that time, corroborates that evidence and added to this the statement of the appellant when questioned u/s 313 of Code of Criminal Procedure also establishes that the incident occurred as deposed by Pws 2 and 5. The details of the incident revealed by the appellant when questioned u/s 313 of Code of Criminal Procedure establishes that the evidence of PW2 as to how the appellant reached the scene of occurrence and how the incident occurred is absolutely true. Though the learned counsel argued that PW5 could not witness the incident as he was walking along the road and crossed the bridge, and was looking back on hearing the sound, PW5 was not cross examined with regard to his capacity to witness the incident from the place from where he looked back and saw the incident. Therefore we have no hesitation to hold that PW5 is also a natural and trustworthy witness. The evidence of PW2 and PW5 conclusively establish that while the deceased and PW2 were standing in front of the car at the scene of occurrence, appellant came along that road in an autorickshaw. Finding the deceased, appellant got down from the vehicle and proceeded towards the deceased. Though in his statement u/s 313 of Code of Criminal Procedure, appellant claimed that he got down from the autorickshaw as the deceased wanted him to get down, such a case was not even suggested to PW2. It is clearly the result of an after-thought. The evidence conclusively establish that appellant, who had a grievance against the deceased as he refused to serve food to him on the previous day when the appellant had gone to the Hotel of the deceased, found the deceased standing on the side of the road. He got the autorickshaw stopped, got down from the autorickshaw and had a scuffle with the deceased. The evidence would also prove that in the scuffle, deceased fell on the gravel and while he was raising, appellant with MO1 knife, inflicted the fatal injury on his chest. Therefore, it is absolutely clear that the injury on the chest was inflicted with MO1 knife, with the intention to inflict that particular injury. The plea of private defence is without any basis and can only be rejected.

The evidence of PW4 Doctor who conducted the autopsy and prepared Ext.P2 Post Mortem Certificate, conclusively establish that the deceased sustained an incised penetrating wound 3.5 X 1 cm/on the left side of front of chest which caused his death. The description of the injury in Ext.P2 reads :-

Incised penetrating wound 3.5 X 1 cm.oblique on the left side of front of chest. Its lower round end was 7 cm away from left nipple in the 5''0 clock position. The other end was pointed. The wound entered the left chest cavity through the 5th intercostal space and entered the left ventricular cavity cutting the left side of left ventricular wall. The wound was directed backwards, upwards and to the right for a minimum depth of 3.5 cm. Left chest cavity was full of blood and left lung was collapsed.

Abrasion 6 X 2 cm on the back of left upper arm 15 cm above elbow. 3. Abrasion 1.5 X 1 cm on the right side of back of trunk 3 cm outer to midline 20 cm below lower end of scapula.

From the nature of the injury and the evidence of PW4, it is absolutely clear that the injury is sufficient in the ordinary course of nature to cause death. When it is already found that the appellant inflicted the injury on the chest with the intention to inflict that particular injury and that injury is sufficient in the ordinary course of nature to cause death. Even if there is no evidence to prove that there was a motive for the appellant to commit murder, an offence u/s 302 of Indian Penal Code will be attracted as it would squarely come under clause thirdly of Section 300 of Indian Penal Code. Added to this, evidence conclusively establish that appellant had the motive to kill the deceased, as the deceased refused to serve food to him from his Hotel in front of others, when appellant went to the Hotel to take food, on the ground that money is due to the deceased from the appellant. In such circumstances, we have absolutely no hesitation to hold that the offence committed is u/s 300 of Indian Penal Code punishable u/s 302 of Indian Penal Code. In such circumstances, conviction of the appellant for the offence u/s 302 of Indian Penal Code is perfectly correct. The sentence awarded is only imprisonment for life. Hence it warrants no interference. The appeal is dismissed confirming the conviction and the sentence.

ORDER

The petition is to "hear the appeal in the interest of justice" filed by the appellant. As the appeal was admitted, it is to be heard and no petition is necessary to hear the appeal. Though learned counsel appearing for the petitioner sought to return the petition, we find no reason to return the same as petition is not necessary for hearing the appeal. Petition is closed.