Partly allowed

Gopi , C.NO.9057 Central Prison, Trivandrum v. State of Kerala, Rep. by Dgp, High Court of Kerala

Kerala HC15 Mar 2018CRL.A/448/2014

Case brief

AI extract

What is this about?

Co-Chief Justice Somarajan allowed the appeal partially, setting aside the conviction under Section 302 IPC for murder. Finding the medical evidence insufficient to prove intent to kill, the court reduced the charge to culpable homicide not amounting to murder under Section 304 Part II IPC and sentenced the appellant to ten years rigorous imprisonment.

What did the court decide?

Conviction and sentence under S.302 IPC set aside. Accused convicted under S.304 Part II IPC and sentenced to rigorous imprisonment for ten years.

Gopi , C.NO.9057 Central Prison, Trivandrum Vs… — 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 &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939

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CRL.A.No. 448 of 2014

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AGAINST THE JUDGMENT IN SC NO.472/2013 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE- V, KOLLAM DATED 22-02-2014

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CP NO.15/2013 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS -II, KOTTARAKKARA

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CRIME NO. 1485/2012 OF KADAKKAL POLICE STATION , KOLLAM

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APPELLANT/ACCUSED:

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GOPI , C.NO.9057, CENTRAL PRISON, THIRUVANANTHAPURAM.

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BY ADV.ADV.V.O.PHILOMINA(STATE BRIEF)

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REP. BY DGP, HIGH COURT OF KERALA.

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BY SPECIAL PUBLIC PROSECUTOR SMT.AMBIKA DEVI S. FOR ATTROCITIES AGAINST WOMEN AND CHILDREN BY ADV. SRI.P.N.SANTHOSH, SPL.GOVERNMENT PLEADER.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9-03-2018, THE COURT ON 15.3.2018 DELIVERED THE FOLLOWING:

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

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----------------------------------------------------

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Crl. Appeal No.448 of 2014 (G)

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---------------------------------------------------Dated this the 15^th day of March, 2018

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JUDGMENT

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P. Somarajan, J.

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The accused came up with this appeal against the judgment of conviction and order of sentence passed under S.302 IPC on account of the death of his wife one Lalitha, aged 42, in S.C.472 of 2013 on the file of the Court of the Additional District & Sessions Judge V, Kollam, dated 22.2.2014.

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2. The prosecution case is that after the death of the husband

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of the victim, she was residing along with the brother of her husband, who is the accused herein, as husband and wife. On the ill fated day, i.e. on 25.11.2012 in and around 3.30 p.m., the accused attacked the victim after consuming alcohol with a wooden stick and inflicted several injuries on her body resulting in her death on the same day by 7.45 p.m. The alleged incident was happened in a rubber estate lying adjoining to her house. There are five eye witnesses to the incident. The lower court, relying on the oral

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Crl. Appeal No.448 of 2014 (G)

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evidence tendered by the prosecution witnesses, found that the accused is guilty of offence punishable under S.302 IPC and convicted him thereunder and sentenced to undergo imprisonment for life and to pay a fine of `10,000/-, in default, to undergo rigorous imprisonment for two months.

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PW13 is the Doctor who conducted postmortem examination on the body of the deceased. She had noted 34 antemortem injuries in Ext.P11 postmortem certificate. The antemortem injuries noted in the postmortem certificate are the following:

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“1. Multiple small abrasions of size varying from 0.2x0.2 cm to 0.5x0.5 cm over an area 7x1 cm obliquely placed on the left side of neck with its upper inner end just below left angle of mandible. Flap dissection of neck done in a bloodless field revealed contusions (1) 4x2x0.5 cm on the front outer aspect of sterno cleido mastoid muscle and (2) 2x0.5x0.3 cm in the myelohyoid muscle, on left side. All other neck structures were intact and normal.

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Contusion 38x30x1.5 cm on the back of neck and trunk upper extent 4 cm above root of neck.

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Crl. Appeal No.448 of 2014 (G)

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:: 3 ::

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Contusion 9x4x1.5 cm horizontally placed on the left side of back of trunk, inner extent 6 cm outer to mid line and 4 cm above top of hip bone.

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Contusion 6x2.5x1 cm horizontally placed on the left side of back of trunk, inner extent 10 cm outer to mid line and 2 cm below outer part of injury number (3).

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Contusion 12x5x1.5 cm on back of trunk in middle 20 cm above natal cleft. Dark red fluid blood - 200 ml seen collected underneath.

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Contusion 17x12x3 cm on the buttock on right side 3 cm outer to mid line 4 cm below top of hip bone.

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Multiple small abrasion over an area 2.5x1.5 cm buttock on right side 6 cm outer to mid line and 17 cm below top of hip bone.

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Contusion 10x5x1.5 cm on the outer aspect of buttock on left side 15 cm outer to mid line and 10 cm below top of hip bone.

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Contusion 15x10x2 cm on the back of right shoulder 8 cm outer to mid line and 4 cm below its top with an abrasion 0.8x0.3 cm at its upper inner aspect.

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Contusion 4x2x0.5 cm on the front of right shoulder with an abrasion 0.8x0.5 cm at its upper aspect.

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Crl. Appeal No.448 of 2014 (G)

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:: 4 ::

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Contusion 25x10x1 cm on the outer aspect of right arm lower extent 5 cm above elbow.

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Multiple small abrasion of size varying from 0.3x0.2 cm to 0.5x0.5 cm over an area 8x6 cm on the back of right elbow and forearm.

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Contusion 9x5x1 cm on the back and outer aspect of right forearm 5 cm below elbow.

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Incised wound 0.8x0.2x0.6 cm vertically placed on the back inner aspect of right forearm its lower blunt end 7 cm above inner aspect of wrist, the upper end was sharp. Its outer margin showed an abrasion 0.8x0.2 cm.

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Contusion 6x4x1 cm on the back of right wrist and adjoining part of right forearm with an abrasion 0.5x0.2 cm at the back of wrist.

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Abrasion 0.6x0.2 cm on back of root of right thumb.

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Contusion 16x6x3 cm horizontally placed on the front of right thigh 23 cm above knee.

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Abrasion 1.5x0.2 cm obliquely placed on front of right thigh lower inner end 12 cm above middle of knee.

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Contusion 9x5x2 cm horizontally placed on front of right thigh 8 cm below injury number 17.

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Multiple small abrasions over an area 5x4cm on lower part of front of right knee.

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Crl. Appeal No.448 of 2014 (G)

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:: 5 ::

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Abrasion 0.5x0.2 cm on front of right leg 16 cm below knee.

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Multiple small abrasions over an area 15x4 cm on the front and top of right ankle, foot and big toe.

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Multiple small abrasions of size varying from 0.5x0.2 cm to 2.5x0.5 cm over an area 8x6 cm on the back of left thigh 23 cm above knee.

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Contusion 10x7x1.5 cm on the back of inner aspect of left thigh 19 cm above knee.

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Contusion 6x4x1 cm on outer aspect of left thigh 3 cm above knee.

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Contusion 10x9x1.5 cm on the front and outer aspect of left thigh 15 cm above knee.

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Contusion 10x8x0.5 cm on inner aspect of left thigh 15 cm above knee.

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Abrasion 0.5x0.5 cm on front inner aspect of left knee.

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Contusion 10x7x1 cm on the back of left hand and wrist with abrasion 0.8x0.5 cm at its middle of inner part.

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Contusion 10x5x1 cm on the inner aspect of back of left forearm 9 cm above wrist with multiple small abrasions of sizes 0.5x0.5 cm to 1.3x0.5 cm at its middle part.

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Multiple small abrasions over an area 3.2 cm on the back of left forearm 3 cm below elbow.

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Crl. Appeal No.448 of 2014 (G)

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:: 6 ::

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Contusion 20x10x1 cm on the back and outer aspect of left arm 10 cm below top of shoulder.

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Contusion 3x3x1 cm on the right palm just above root of inner two fingers.

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Incised punctured wound 2x0.6x0.8 cm vertically placed on the outer aspect of back of left arm with its lower rounded end, 3 cm above elbow. Its upper end was sharply cut.”

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The Doctor who conducted the postmortem examination had not specified the exact cause of death, but had given only a statement that the death was due to multiple injuries (injury Nos.2,3,5,6,8,9,11,13,17,19,24,26,27,29,30 and 32). All these injuries are either contusions or abrasions. At the same time, it is admitted by the Doctor that there is no injuries on vital part of the victim.

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The eye witnesses examined, PW2 Suseela, PW3 Sahadevan, PW4 Syamala and PW5 Suganthy, are consistent with respect to the place wherein the alleged incident happened, the time in which the alleged incident happened, the identity of the accused, his relationship with the victim, the nature of the weapon used and the manner in which the injuries were inflicted. PW2 had

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Crl. Appeal No.448 of 2014 (G)

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spoken what she had seen on the same day while she was on the way to take a bath along with one Beena and Syamala (PW4). She had seen the attack unleashed by the accused on the victim by using MO2 wooden stick, which she had identified while she was in the box. PW4 Syamala had given sufficient corroboration to the oral testimony of PW2. At first, the attack unleashed on the victim by the accused while she was at the rubber estate lying adjoining to her house. He had pushed and dragged her to her house compound and continued his attack on her with MO2 stick. PW3 and PW5 also had given sufficient corroboration to the oral testimony of PW2 and PW4 with respect to the main substratum of the prosecution case. The time spoken by all the witnesses is an approximate time in which the alleged incident happened as it was happened in and around 3.30 p.m. on 25.11.2012 and nothing was brought out to discredit their oral evidence or to doubt their presence in the place of occurrence. In other words, the oral evidence tendered by PW2 to PW5 would sufficiently show the guilt of accused in the commission of offence. All of them had identified the weapon used for inflicting injuries as MO2 wooden stick.

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As discussed in earlier paragraphs, the cause of death

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Crl. Appeal No.448 of 2014 (G)

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deposed by PW13 Doctor is not specific. Further, whether these injuries could be possible by the user of MO2 wooden stick was also not established by the prosecution except a statement made by PW13 that MO2 wooden stick can cause injuries. The nature of MO2 wooden stick specified as having a length of 1.21 metres and at the middle portion having a width of 7 cm. Injury No.2 is one of the injuries noted by PW13 as the cause of death. Interestingly, the measurement of injury No.2 is 38x30x1.5 to 3 cm. It would show that the abovesaid injury is having a measurement of 38x30 cm and an approximate width/height of 1.5x3 cm. It is on the back of neck. All other injuries except injury Nos.14 and 34 are only abrasions and contusions without any bony injury or fracture. There is no evidence to show that those injuries were actually caused damage or injury to any vital organ or any blood vessels, veins etc. All the injuries except injury Nos.2 and 3 are not in the vital parts. But the nature of injury Nos.2 and 3 would show that those injuries are on the vital part, back of neck, though the medical evidence adduced through PW13 did not support the same. We are in darkness as to actually what is the reason for the death unless there is injury to any vital part or bleeding injury. The two incised wounds noted, ante-mortem injuries 14 and 34, are very minor in nature and may not be sufficient

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Crl. Appeal No.448 of 2014 (G)

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for even causing any bleeding. If that be so, the prosecution should show what is the real cause of death. The opinion given by PW13 is so evasive and not specific. Of course, the cumulative action of these injuries coupled with trauma may cause death. But no such case was also advanced. But injury No.2 by its location would show that it is on the vital part, the back of neck. So, we are not in a position to agree with the opinion rendered by PW13 that there are no injuries on the vital parts of the victim. Injury No.2 would show that it has got a measurement of 38x30x1.5 to 3 cm. The question whether it could be possible to cause such an injury by the user of MO2 still remains in darkness. The oral evidence tendered by PW2 to PW5 would show that the attack was by the user of a wooden stick. It was also submitted by the learned Public Prosecutor that more than one hit on the same place may cause contusion of more than the width of the stick used for it. It is true that the victim succumbed to the injuries on the same day at 7.45 p.m. while she was at the hospital and she was aged only 42 at that time and her weight was only 42 kgs. As discussed above, the real effect of injury Nos.2 and 3 on the victim was not specifically deposed by PW13, though these two injuries are on vital portion. The question whether the accused was harbouring any enmity towards the victim

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Crl. Appeal No.448 of 2014 (G)

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and whether he had intended to cause such injury likely to cause death has to be ascertained with the attending circumstances. Though a case was advanced by the prosecution that the accused attacked the victim as she had fell in love with another person, no acceptable evidence was adduced in that behalf. Considering the nature of the ante-mortem injuries noted and the nature of the weapon used, though the injuries comes to 34 in numbers, we are unable to accept the contention that the accused had inflicted injuries on the victim with the intention of causing death or such bodily injury likely to cause death with knowledge and hence the offence alleged cannot be brought under Sec.302 IPC. At the most, the ingredient brought by the prosecution would satisfy a culpable homicide not amounting to murder without any intention to cause death but with knowledge that it is likely to cause death punishable under Part II of Sec.304 IPC.

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The victim was aged only 42 years and was living at the mercy of the accused (the brother of her husband) after the death of her husband and she was living with him as husband and wife. Her weight is reported as 42 kg. which would prima facie show the sad plight of a lady aged 42 who had met with a sad death in the hands

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Crl. Appeal No.448 of 2014 (G)

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of her second husband. She was actually beaten to death. The number of ante-mortem injuries, which comes to 34 in numbers, would show the nature of attack unleashed on her and hence we are of the view that the maximum sentence which can be imposed for the offence under S.304 Part II IPC warranted in this case and we do so.

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In the result, the appeal allowed in part. Finding of guilt of accused under Sec.302 IPC and the conviction and sentence thereunder are set aside. Accused is found guilty of offence under Sec.304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of ten years. The accused is entitled to set off of the period of sentence already undergone including pretrial detention.

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sd/-

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A.M. Shaffique Judge

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sd/-

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P. Somarajan Judge

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ahz/

Gopi , C.NO.9057 Central Prison, Trivandrum v. State of Kerala, Rep. by Dgp, High Court of Kerala

Case brief

What is this about?

What did the court decide?

Gopi , C.NO.9057 Central Prison, Trivandrum v. State of Kerala, Rep. by Dgp, High Court of Kerala

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

Coram

Case details

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