Partly allowed

Mujeeb v. Sub Inspector of Police

Kerala HC1 Aug 2018CRL.A/114/2013

Case brief

AI extract

What is this about?

Division Bench allowed criminal appeal in murder case. Court held single fatal stab wound inflicted in spur of moment without premeditation constitutes culpable homicide (Part II Section 304 IPC) not murder. Conviction under 302 IPC set aside; re-sentenced to 7 years. Lower sentences for Sections 324 and 341 IPC confirmed.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside. Appellant convicted of culpable homicide not amounting to murder under Part II of Section 304 IPC and sentenced to seven years rigorous impriso

Mujeeb Vs Sub Inspector of Police — Murder and Culpable Homicide | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940

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CRL.A.No. 114 of 2013

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AGAINST THE JUDGMENT, DATED 15.1.2013, IN SC NO.292/2009 OF THE COURT OF THE SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE

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APPELLANT/1ST ACCUSED

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MUJEEB, S/O KOYATTI, KUNICHIKANDY PARAMBA, CHAKKUMKADAVU, GOPAL SWAMY AYYANKAR ROAD, PANNIYANKARA AMSOM.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN

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SRI.VIPIN NARAYAN

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RESPONDENTS/COMPLAINANT & STATE:

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SUB INSPECTOR OF POLICE PANNIYANKARA POLICE STATION - 673 005.

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THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.7.2018, THE COURT ON 1.8.2018 DELIVERED THE FOLLOWING:

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A.M.Shaffique & P. Somarajan, JJ.

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---------------------------------------------------Crl. Appeal No.114 of 2013 D

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---------------------------------------------------Dated this the 1^st day of August, 2018

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JUDGMENT

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P. Somarajan, J.

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Against the judgment and order of conviction, dated 15.1.2013, in S.C.No.292 of 2009, on the file of the Court of Special Additional Sessions Judge, Kozhikode, accused No.1 came up with this appeal.

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The allegation is that one Makesh met with a sad death in the hands of accused Nos.1 to 3. Accused Nos.2 and 3 hold him back at the time of attack by accused No.1 with a knife on his left abdomen. The alleged incident was happened on 13.1.2007 at Panniyankara-Payyanakkal road by 9.15 p.m. While the victim Makesh along with PW1 and CW2 Lijeesh were proceeding to the place of occurrence, accused Nos.1 and 2 came there in a scooter. Accused No.3 also came there. They unleashed attack on PW1 Thajudeen. Accused No.1 took a soda bottle from his waist and hit on the head of Thajudeen. Then again he continued attack by hitting with the soda bottle on PW1. Then he took a knife and inflicted an

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injury on his neck by pressing the knife against his neck. It is at that time the victim confronted with him which has resulted in a stab injury on his left abdomen inflicted by accused No.1 with the knife. Accused No.3 was acquitted. Since accused No.2 remained absconding, case against him was split up. Accused No.1 was found guilty for the offences punishable under Sections 302, 324 and 341 of the Indian Penal Code and he was convicted and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year under Section 302 IPC, rigorous imprisonment for a period of one year under Section 324 IPC and simple imprisonment for a period of one month under Section 341 IPC. There is a direction to run the substantive sentences of imprisonment concurrently. Against the order of conviction and sentence, this appeal is preferred by accused No.1.

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There are altogether three occurrence witnesses, among them PW1 Thajudeen is the injured in the alleged incident. It was happened by 9.15 p.m. on 13.1.2007. On the same day by 8.45 p.m.,

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there was a quarrel in between PW1 and Lijeesh on one side and accused No.1 on the other side. It is thereafter accused No.1 along with accused No.2 came to the place of occurrence in a scooter. Accused No.3 also came there. His evidence stood as corroborated by another occurrence witness PW2 who took both the injured and the victim to the hospital just after the alleged incident in an autorickshaw. PW3, another occurrence witness, had also given corroboration to the oral testimony of PW1 and PW2. The oral evidence tendered by them further stood as corroborated by Ext.P16 wound certificate and the oral evidence tendered by PW16. Ext.P16 is the wound certificate drawn on PW1 by PW16 Doctor, who attended PW1 in the Medical College Hospital. Their ocular version further stood as corroborated by the medical evidence adduced through PW13, who conducted autopsy on the body of the victim and had drawn Ext.P13 postmortem examination report. Injury No.7 is a fatal injury penetrating upto the heart which has resulted in the death of the victim. Hence, there is no reason for any interference to the finding of the learned Session's Judge that the prosecution has established homicide of Makesh, the victim.

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Then comes the question whether it would satisfy the

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requirement which would bring the matter within the sweep of Section 300 IPC and whether it would fall under any of the Exceptions attached to Section 300 IPC. Even the prosecution did not have any case that there is a pre-meditated commission of offence with the intention to cause death of the victim Makesh. The postmortem examination report reveals the following:

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“POSTMORTEM FINDINGS

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A. GENERAL:

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Entire body of a moderately built and nourished male of weight 52 kgm and 165 cm tall wearing a pink coloured underwear and there was a coil of black thread around (right) wrist with 10 circles. Eyes closed, cornea bazy. Rigor mortis established and retained all over the joints. Multiple white coloured beads seen adhering to the back of body. Finger nails blue. Sand particles are seen on the front and sides of neck. Postmortem staining faint and fixed over back of trunk.

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B. INJURIES (ANTEMORTEM)

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Incised wound, muscle deep 1.2x3 cm, vertical on (left) eyebrow 2 cm outer to midline.

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Multiple abrasions 2.2x1cm on (left) side of forehead 4.5 cm outer to midline and 0.5 cm above eyebrow.

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Graze abrasion 2x1.5cm left temple with direction downwards.

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Multiple spot abrasions 2x2.5 cm (left) side of forehead at hair margin 4.5 cm outer to midline and 5 cm above eyebrow.

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Abrasion 0.5x0.3 cm outer aspect of wrist 1 cm below joint line.

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Spot abrasion lower lip at midline.

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Incised penetrating wound 2x0.5 cm transverse inner end sharp cut and other end rounded the lower border in slightly concave, on left side of abdomen, at and below costal margin, 19 cm below nipple, inner end 9 cm outer to midline. The wound entered with chest cavity by cutting muscles just below the rib margin producing a through and through cut on the front wall of stomach 1.5xz0.5 cm (entry wound), the exit wound was 9 cm above the entry wound and measured 2x0.5 cm and then produced a cut on the under aspect of left lobe of liver 2x0.3 cm placed 2 cm below the upper border and then produced a cut on the diaphragm and then entered the

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pericardium, and produced a cut on the posterior aspect of left ventricles (2x0.2 cm) and entered the left ventricle cavity. Left ventricular thickness was 1.5 cm. Total minimum depths 18 cm and the wound was directed upwards, slightly to the back and to the right. All injuries are fresh in nature. The left chest cavity contained 1.5 litre of fluid blood and clots.

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C. OTHER FINDINGS:

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Stomach contained a handful of rice in 20 ml of grayish viscid medium with a slight spirituous odour. Left lung 250 gms (right) 280 gms, heart 280 gms; liver 1400 gms, brain 1250 gms, spleen 50 gms, Brain 1200 gms, urinary bladder empty. All organs are pale otherwise normal. Viscera and body fluids sent for chemical analysis No.153/07 dated 15.1.07.

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OPINION AS TO THE CAUSE OF DEATH:

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Deceased died due to penetrating injury to heart.”

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The genesis of the incident and how it was happened are relevant to gather the real intention behind the crime, whether it was actually intended by the perpetrator/ assailants and whether they had

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actually intended the resultant consequences of their alleged act. There is only one incised wound on left abdomen of the victim which penetrated upto the heart resulting in the death of the victim. Injury No.1 sustained on left eyebrow is also an incised wound but very minor in nature. All other injuries are only mere abrasions or contusions. The fact that there is only one fatal incised wound, injury No.7, would sufficiently show that there was only one blow on the victim by accused No.1. The stab injury was on his left abdomen. Accused Nos.1 and 2 came there in a scooter in connection with the earlier episode which was happened on the same day by 8.45 p.m. in which the victim was not a party. The genesis of the incident and the manner in which the offence was committed would show that there was motive for the first part of incident in inflicting injury to PW1 due to the prior enmity on account of the first episode happened on the same day in which the victim was not a party. No acceptable case of enmity or hatredness against the victim was let in or brought out by the prosecution. No case of prior enmity, hatredness or ill-will against the victim was brought out. On the other hand, the injury which was sustained by the victim is the resultant effect of his

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interference with the attack on PW1 by the accused. The injuries sustained by PW1 are very minor in nature which is evident from Ext.P16 wound certificate of PW1. Ext.P16 wound certificate of PW1 reveals the following injuries:

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“Incised wound 3x1x2 cm over (L) forearm. Two incised wounds 2.5x2x2.5 cm over (R) forearm. Incised wound 6x1x2 cm over back of neck. Incised wound 2x1x1 cm back of chest.

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Incised wound ® lateral chest 3x1x5 cm.”

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This would prima facie show that none of the accused persons intended to cause either death of PW1 or to cause any injury sufficient to cause his death. The only injury sustained by him is minor in nature and this has to be read along with the earlier episode of quarrel in between PW1 and the accused persons. The real motive, even according to the prosecution, is against PW1 the other injured in the incident and the attack was on him by the accused persons in connection with the earlier incident happened on the same day. The injuries sustained by him are only minor in nature and that would prima facie show that none of the accused intended to cause any serious injury or any fatal injury to PW1. This has to be taken into

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account to assess under what circumstances the accused had sustained the injuries. This would show that the motive behind the attack against PW1, though satisfactorily explained by the prosecution, cannot be extended to the act against the victim as it was happened when the victim interfered in the attack against PW1 in a spur of moment. No case was advanced or brought in evidence by the prosecution that the victim had suffered an injury while he was saving the life of PW1. No evidence was tendered to show that the victim was actually engaged in saving PW1 from the attack of the accused persons. But the specific case unfurled through the witnesses shows that he had confronted with the accused at the time when they attacked PW1. The postmortem examination report further reveals that he had consumed alcohol at that time. It is the victim who intervened in the attack of PW1 by the accused persons and confronted with the accused persons which has resulted in the injury sustained by the victim. Hence, there cannot be any premeditated commission of offence as against the victim by the accused. All the occurrence witnesses - PW1, PW2 and PW3 - are in agreement with respect to the genesis of the alleged incident and the manner in which

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the victim had sustained a stab injury on his left abdomen.

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Going by the injuries sustained by the victim and considering the fact that it was happened in a spur of moment, it would clear that there was no intention to do away the victim by the accused or to cause any injury sufficient to cause death in its ordinary course. So, it will not come under any of the clauses to Section 300 IPC and as such the finding of guilt under Section 302 IPC, the conviction thereunder and the sentence awarded are liable to be set aside. The offence at the most would come under the purview of Part II of Section 304 IPC and hence accused No.1 is found guilty for the offence punishable under Part II of Section 304 IPC and he is convicted thereuder and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rupees one lakh, in default, to undergo rigorous imprisonment for another period of one year. The fine amount, on realization, shall be released to the legal heirs of the victim.

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As discussed in earlier paragraph, the injuries alleged to

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have been sustained by PW1 noted in Ex.P16 wound certificate would attract the offence under Section 324 IPC as well as Section 341 IPC for the commission of wrongful restraint and hence there is no reason for interference to the finding of guilt of accused No.1 for the offence under Section 324 and 341 IPC and the conviction thereunder. The sentence awarded for the offences under Section 324 and 341 IPC strikes a balance and hence no interference is required.

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In the result, the appeal is allowed in part as follows:

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a) The conviction and sentence passed under Section 302 IPC against accused No.1 is hereby set aside.

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b) Accused No.1 is found guilty for the offence under Part II of Section 304 IPC and he is convicted thereunder and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rupees one lakh, in default, to undergo rigorous imprisonment for another period of one year.

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c) The finding of guilt of accused No.1 for the offence punishable under Sections 324 and 341 IPC, the conviction and sentence thereunder are hereby confirmed.

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d) Substantive sentence shall be run concurrently.

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e) Accused No.1 is entitled to set off of the period of pre-trial detention and the sentence already undergone.

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f) The fine amount, on realization, shall be released to the legal heirs of the victim.

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sd/A.M. Shaffique Judge

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sd/P. Somarajan Judge

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ahz/

Mujeeb v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Mujeeb v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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