Partly allowed

Rehim v. State of Kerala

Kerala HC27 Jun 2018CRL.A/61/2015

Case brief

AI extract

What is this about?

In an appeal against life imprisonment, the High Court held that while the accused intentionally hit the deceased with a motorcycle, the act lacked the specific intention to cause death required for murder. The conviction under Section 302 IPC was set aside and substituted with guilty finding under Section 304 Part II IPC with seven years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside. Accused convicted under Section 304 Part II IPC and sentenced to seven years rigorous imprisonment and fine of one lakh.

Rehim Vs State of Kerala — 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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WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940

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CRL.A.No. 61 of 2015

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AGAINST THE JUDGMENT IN SC.NO.918/2008 OF THE COURT OF ADDITIONAL SESSIONS JUDGE III, MAVELIKKARA DATED 13.1.2015.

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APPELLANT/ACCUSED

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REHIM, AGED 34 YEARS, S/O.HABEEB RAWTHER, KALLUVEETTU PARAMBIL, VETTIYAR VILLAGE, VETTIYAR MURI, MAVELIKKARA TALUK.

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BY ADVS.SRI.RENJITH B.MARAR

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SMT.RESHMI JACOB

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA (CIRCLE INSPECTOR OF POLICE, MAVELIKKARA), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SENIOR. PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.6.2018, THE COURT ON 27-06-2018 DELIVERED THE FOLLOWING:

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

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

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Crl. Appeal No.61 of 2015

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---------------------------------------------------Dated this the 27^th day of June, 2018

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JUDGMENT

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Somarajan, J.

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Against the judgment of conviction and order of sentence under Section 302 of the Indian Penal Code in S.C.No.918 of 2008, dated 13.1.2015, of the Additional Sessions Judge III, Mavelikkara, the accused came up with this appeal.

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The crime has been registered in connection with the death of one Shany by alleging intentional hit of a motor cycle bearing Reg.No.KL.31/3580 and that the accused had rammed the motor cycle violently over the body of the deceased and by the hit, he fell down after sustaining serious injuries and succumbed to the injuries on his way to the hospital by 7.50 p.m. The alleged incident took place on 3.8.2007 at about 7.30 p.m. The deceased Shany and the accused are fish vendors by profession. There was some quarrel and exchange of heated words between the deceased, PW13 and one Shamnad

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Crl. Appeal No.61 of 2015

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on one side and the accused on the other side in front of the house of one Kuttachan and by the intervention of the father and sister of Kuttachan they left the place. PW13 along with the deceased Shany and Shamnad returned in an autorickshaw and while they were on the road in front of Vettiyar Muslim Church, the accused came there in a bike and repeated the exchange of altercation with them. Due to the intervention of persons present there, he left the place. The autorickshaw was stopped there due to break-down and while the deceased along with PW13 and Shamnad attempted to take the autorickshaw by pushing from back, the accused came from behind in his motor cycle and rammed on the body of deceased causing injuries and the deceased fell down. Though he was immediately removed to the hospital, by that time he succumbed to the injuries.

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The learned Sessions Judge found the accused guilty for the offence under S.302 IPC and he was convicted thereunder and sentenced to undergo imprisonment for life and

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Crl. Appeal No.61 of 2015

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to pay a fine of `25,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year. There was a direction to pay the fine amount, on realization, to the wife of the deceased under Section 357(1) of the Code of Criminal Procedure.

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The prosecution mainly relying on the dying declaration alleged to have been given by the victim before PW12 - the first informant who gave FIS, the oral evidence tendered by PW12, PW10 the Doctor who conducted postmortem examination on the body of the deceased, PW9 the Doctor who attended the injured accused immediately after the alleged incident and had drawn Ext.P5 wound certificate and the oral evidence of another independent witness PW13 so as to prove the complicity of the accused in the crime.

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PW12, the first informant, had given Ext.P8 First Information Statement by 11 p.m. on the date of alleged incident, i.e. 3.8.2007. The alleged incident happened in and

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around 19.30 hours (7.30 p.m.). The FIS is seen received by the concerned Magistrate on the next day,i.e. on 4.8.2007, by 10 a.m. As such, there cannot be any inordinate delay and no case of delay was either set up or brought in evidence by the accused and it would prima facie show that there is no delay in recording the FIS from the mouth of PW12. Much weight has been given by the learned Sessions Judge to Ext.P8 FIS coupled with the oral evidence tendered by the first informant, PW12, by which he had disclosed the dying declaration alleged to have been given by the deceased while he was taken to the hospital in an autorickshaw.

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A mere perusal of FIS and the ocular evidence adduced by PW12 in tune with the FIS would show that the deceased, during the course of his removal to the hospital in an autorickshaw, had given dying declaration stating that it was the accused who had intentionally hit on him by riding a motor bike and that he had sustained injuries. There is no much dispute that he had succumbed to the injuries just after the

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dying declaration before reaching the hospital and the Doctor who attended him informed the bystanders who brought the injured to the hospital within five minutes that he is dead.

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The Doctor who conducted postmortem examination on the body of the deceased, during his examination as PW10, had revealed the nature of head injury sustained, which is the reason for death. Laceration on the temporal lob of brain was noticed by him besides bleeding noted at cerebral region with scalp contusion and conjunction of brain. The laceration on the temporal lob of brain was 3x3x1cm. Subarachnoid haemorrhage noticed in the cerebral and cerebellar hemispheres causing unconsciousness. But the dying declaration alleged to have been given by the victim to PW12 is so descriptive in nature touching each and every minute aspects to the genesis of the alleged incident including the two earlier episodes which were happened just before the alleged incident with its precision and accuracy explaining each and every minute details of two episodes which were happened just

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before the alleged incident and also what happened after that and how he had sustained injuries. It is not merely confined to one or two words or sentences but a clear narration of the entire episode including what happened earlier on that day just before the alleged incident was given. This has to be read along with the medical evidence tendered by PW10, the injuries alleged to have been sustained by the victim on his head and its extensive nature. Even according to PW12, the first informant, just after giving such a narration the victim took a short pause and fell unconscious by that time they reached the hospital wherein the Doctor who attended the victim declared him as dead. Subarachnoid haemorrhage seen on the cerebral and cerebellar hemisphere having extensive injury and bleeding and the opinion rendered by PW10 Doctor that it would cause unconsciousness would take away the dying declaration alleged to have been given by the victim before PW12 just before his death. The injuries sustained by him is of such a nature depriving him from giving such a lengthy narration of incident. In fact, a mere perusal of the dying

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declaration alleged to have been given by the victim and its lengthy narrative nature would sufficiently show that it is only a tutored version. The fact that the victim succumbed to the injuries just after the alleged lengthy narrative dying declaration would speak volume what is behind it. Hence, no reliance can be placed on the oral evidence tendered by PW12.

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The oral evidence tendered through PW13, the occurrence witness, gives a narrative picture of what actually transpired and happened on the ill fated day. The only contradiction marked as Ext.P1(a) is quite natural and probable and not material, hence, may not be sufficient to reject the oral evidence tendered by the witness or shake his credibility if it is otherwise found to be acceptable and reliable. He is the person who was with the victim even from the genesis of the alleged incident and in the previous episodes and he is in full agreement with the main substratum of the prosecution case. He had given a narrative picture of what actually happened and the role of accused. He had identified the vehicle used for

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inflicting the injury and, according to him, it was an intentional hitting. The earlier episodes involving both the victim and the accused and exchange of heated words were also spoken by him with its precision. Nothing was brought to discredit his evidence. The non-examination of Shamnad, who was present at the place of occurrence, is not fatal to the prosecution since the oral evidence tendered by PW13 is clear and trustworthy. Nothing was brought out to discredit his oral evidence except a minor contradiction exhibited as Ext.P1(a) which is as discussed earlier is probable and natural. The fact that he had consumed some alcohol at the time of alleged incident may not be sufficient to reject his oral evidence if it was otherwise found to be reliable.

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The medical evidence adduced through PW10 Doctor who conducted autopsy on the body of the deceased and drawn Ext.P6 postmortem examination report would also support the cause of injury by the user of a bike hitting and hence gives corroboration.

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The injuries alleged to have been sustained by the accused are also relevant as the same were sustained by him at the same place and in the same incident which is well evident from Ext.P5 wound certificate proved through PW9 the Doctor who attended the accused, wherein the cause of injury is stated to be “fall from bike” at the same place and same time. This would show the involvement of bike driven by the accused and sustaining of injury by him in a fall from the bike at the time and place wherein the alleged incident happened. This would give sufficient corroboration to the oral testimony of PW13 regarding involvement of accused and the bike in the alleged incident.

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The oral evidence tendered by PW13 is so specific and clear as to the manner in which the alleged incident happened. None else was there in the place of occurrence except the victim, PW13 and one Shamnad, who were at that time pushing the autorickshaw which was struck down due to mechanical failure and the bike driven by the accused came

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from backside and hit on the back of victim. In that attempt, the accused had also sustained some minor injuries. The earlier two episodes which had resulted in exchange of altercation would be relevant and it is just after that the accused took his bike and rammed against the victim. So an intentional hit is well evident and hence cannot be brought under the purview of an accidental incident or a motor vehicle accident.

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Even if it is established that the user of motor bike was with full intention to hit against the victim and the bike was ridden with that intention, it is not sufficient to satisfy the requirement which would satisfy “murder” as envisaged under Section 300 IPC. Intentionally hitting a bike ridden by the accused as against the victim may not be with the intention to do away the victim or with the intention to cause such bodily injury likely to cause death, though he may have the knowledge that such bodily injury is likely to cause death. Injury caused with the knowledge that it is likely to cause death

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but without any intention to cause death or to cause such bodily injury as is likely to cause death would come under the purview of part II of Section 304 IPC if the same would not come under the purview of fourth clause of Section 300 IPC. The ingredient which would bring an action within the purview of fourth clause of Section 300 IPC is the knowledge that the act (i) “is so imminently dangerous” and that (ii) it must, in all probability, cause death or such bodily injury as is likely to cause death and (iii) commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, which is lacking in the instant case and hence, the finding of guilt of accused under Section 302 IPC and the conviction thereunder and the sentence ordered are liable to be set aside. We do so. The offence would come under the purview of Section 304 Part II IPC and hence, the accused is found guilty of offence punishable under that Section and 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 simple imprisonment for another

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period of one year. In the event of realization of fine amount, it shall be released to the widow of the victim under Section 357(1) Cr.P.C.

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In the result, the appeal is allowed in part. The finding of guilt of accused under Section 302 IPC and the conviction and sentence thereunder are hereby set aside. Accused is found guilty of offence punishable under Section 304 Part II IPC and 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 simple imprisonment for another period of one year. In the event of realization of fine amount, it shall be released to the widow of the victim under Section 357(1) Cr.P.C. The accused is entitled to set off the period of pre-trial detention, if any, undergone.

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sd/A.M. Shaffique Judge

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sd/P. Somarajan Judge

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ahz/

Rehim v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rehim v. State 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

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