High Court dismissed criminal appeal against murder conviction of first accused, upholding lower court finding of intent to murder based on evidence of injured witnesses and weapon recovered.
Appeal dismissed; sentences of life imprisonment and fine under IPC 302, 7 years rigorous imprisonment and fine under IPC 307 imposed on first accused upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940
CRL.A.No. 687 of 2013
AGAINST THE JUDGMENT IN SC 253/2008 of ADDL.SESSIONS COURT (ADHOC-II), KALPETTA DATED 03-05-2013
APPELLANT(S)/1ST ACCUSED
KUNJU @ DEVASYA S/O.JOSEPH, AGED 43 YEARS, ELAYIDATH HOUSE, ACHINAHALLY, PADICHIRA AMSOM.
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA CIRCLE INSPECTOR OF POLICE, PULPALLY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2018, THE COURT ON 1/8/2018 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
========================== Crl.Appeal No.687 of 2013
====================
Dated this, the 1st day of August, 2018
J U D G M E N T
Shaffique, J.
The appeal is filed by the first accused in SC No.253/2008 challenging judgment dated 3/5/2013 by which he was convicted for offence u/s 302 and 307 I.P.C. He is sentenced to undergo imprisonment for life and to pay a fine of 1 lakhs for the offence u/s 302 of I.P.C and rigorous imprisonment for a period of 7 years and a fine of 50,000/- for the offence punishable u/s 307 of I.P.C. with default sentence of simple imprisonment for two years. There were two accused in the case and the trial Court had acquitted the second accused.
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that the accused have taken the gold chain and accordingly they along with their deceased brother-in-law Roy went in search of the accused. When they reached the house of one Eayannam Thomas, and proceeding on the basis that the accused would be there, Roy called the first accused. Immediately they came out of the house of Eayannam Thomas armed with chopper and a stone. Prosecution alleges that they had a common intention to cause death of the deceased. They attacked PWs 1 and 2 and deceased Roy. PW2 and Roy sustained grievous hurt and PW1 also sustained certain injuries. All of them were taken to Medical College Hospital, Kozhikode and on the way Roy succumbed to his injuries.
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identified. The defence relied upon Exts.D1 to D5 contradictions in the case diary. After giving an opportunity to explain the incriminating circumstances against the accused in terms of S.313 of Cr.P.C., Court found the first accused guilty for the offence of murder and attempt to murder and accordingly imposed sentence as stated above.
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out are not sufficient enough to belie the prosecution case.
“1) Incised wound with contused margins 18x2 cms, extending from left ala of nose, root of nose, forehead, reaching right temporal area, curved, concavity towards right side. Back end was 6 cm above right ear at 1 o'clock position. Underneath the wound nasal bones, right frontal bone outer aspect, roof of right orbit were cut producing a defect 7x4 cm (oval). Durameter was also cut. Laceration of frontal lobe of brain right side 3x3x2 cm. Subarachnoid bleeding in thin film over entire cerebral hemisphere.
2. Incised wound 1.8x0.2cm oblique on forehead in midline, lower left end 3.5 cm above root of nose. Underneath the wound the outer table of frontal bone was cut chipping off a fragment 2.3x1cm.
3. Superficial incised wound 0.7x0.2 cm on left side of forehead, 2 cm outer to previous injury 2;
4. Incised wound 6.5x1 cm on top of head transversely placed, left lower edges 11 cm above ear, other end 1 cm to the right of midline. There was a cut on frontal bone 11 cm in front of coronal suture 5.5x0.7 cm. Inner table of bone was showing right depression to the cranial cavity. Durameter and brain beneath were normal;
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5. Abrasion 1.5x0.3cm on let side of face, 1 cm below lower eyelid;
6. Incised wound 2x0.5cm muscle deep, vertical on right side of cheek, lower end rounded 0.7 cm outer to angle of mouth, upper end showed tailing upwards far a length of 1 cm;
7. Spot abrasion on top of left shoulder 7 cm outer to root of neck;
8. Spot abrasion 6 cm in front of injury No.7;
9. Abrasion 3.2x0.5 cm on left shoulder blade, 10 cm below top of shoulder, 11 cm to the left of midline;
10. Multiple contused abrasions over an area 11x5 cm on front of left knee;
11. Linear abrasion 3 cm long, on front of right leg, 7 cm above ankle.
12. Multiple contused abrasions over an area 7x6 cm on front of right knee;
13. Incised wound 12x5x4 cm, vertical on inner aspect of right upper arm, lower end at elbow. Underneath this injury muscles of upper arm cut near the elbow. No injury to the humerus;
14. Superficial, incised wound transverse 4.5x1 cm on front of right forearm 3.5 cm below elbow joint;
15. Linear abrasion 4 cm long oblique on front of right side of chest, lower outer end 4 cm above nipple and ;
16. Incised wound muscle deep 2x0.5 cm transverse on back of right side of chest, 7 cm right of midline and 34 cm below top of shoulder.”
The Doctor deposed that the deceased succumbed to injuries due to the cut injuries he sustained on his head and face.
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wound certificate. The following are the injuries sustained by PW2.
fracture skull;
their father. PW16 has deposed that PW19 called him and they together had taken the injured to the hospital. Initially they took them to Priya Hospital, Mananthavady and thereafter to the Government Hospital, Sulthanbathery who advised them to be taken to the Medical College Hospital, Kozhikode. The Doctor examined Roy at Medical College Hospital and he was found dead. PW19, father of PWs 1 and 2 had proceeded to the scene of occurrence when he had come to know that PWs 1 and 2 along with Roy had gone in search of the accused. When he was about to reach the scene of occurrence, he saw PW1 come running who informed that they were attacked by accused and others fell down
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at the scene of occurrence. PW19 thereafter went to the scene, and with the help of PW16, they were taken to the hospital.
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regarding the altercation and scuffle between the two groups and that people intervened and separated them. PW2 has lost one teeth in the said scuffle. He thereafter deposed regarding the loss of gold chain of PW2 and they proceeded in two motorcycles towards the house of accused. En-route they reached the house of Eayannam Thomas. When Roy called the name of the first accused, accused 1 and 2 came running by carrying a chopper and a stone and PW1 was hit by a stone by the 2nd accused. First accused brandished the chopper against Roy. Roy moved backwards. 2nd accused caught hold of Roy and first accused hit Roy on his head and hand with the chopper. Roy fell down. PW2 attempted to save Roy and first accused attacked him also. 2nd accused caught hold of PW2 who was trying to avoid hitting of the chopper and first accused hit him on his head and neck again. Soy also fell down. It is deposed that thereafter the accused persons left the place and PW1 ran away from the place. On route, he found his father PW19, brother Jerald and PW16 coming along the road in a jeep. They went to the scene of occurrence and took injured Roy and Soy to the hospital. Initially they were taken to Sultanbathery Government Hospital and thereafter to Medical College Hospital. Doctor examined Roy and he was
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declared to be dead. PW2 was admitted in the Intensive Care Unit.
He also deposed that there was enough light to identify the accused. On the next day morning at 9.15 am, he came back from Medical College Hospital and gave Ext.P1 statement. He also identified MO1 chopper used by the first accused to attack PW2 and deceased Roy.
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She also deposed that she heard a sound on the date of occurrence but she did not go outside. PW7 is also a witness to Ext.P5 scene mahazar. He admits his signature in the mahazar but he does not know the contents thereof. As already stated, PW8 is the Doctor who conducted postmortem who had deposed that injury Nos. 1 and 4 on Roy are sufficient in the ordinary course of nature to cause death of a person. He also deposed that the injuries found on the body of the person is possible with MO1 chopper. PW9 is the Doctor who examined PW1 and Ext.P8 is the wound certificate. He suffered the following injuries:-
“1. diffuse swelling with laceration <1 cm size on LT side of face swelling measuring 3x3 cm;
2. abrasion 4x4 cm, swelling LT side of neck, swelling measuring 3x3 cm.”
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take the injured to the hospital. PW17 is the witness to Ext.P15 mahazar by which MO1 knife was recovered by the police. However he deposed that he had not seen the police recovering the knife. Though he admitted his signature, he does not support the prosecution case regarding recovery and he was declared hostile. PW18 is another witness for recovery, who also turned hostile. PW19 is the father of PW2. He had not witnessed the incident but had taken the injured to the hospital. PW20 is another person who explains the initial confrontation/altercation between the parties. He stated that he had interfered in the matter and both were asked to move away. The accused had gone to their house and PW1 and PW2 had gone to their house. He further stated that he had taken PW2 to the hospital in between Meenangadi and Muttilin. In cross examination he stated that PW2 had created the problem. 2nd time problem was created by PW1. They had come to the accused and created the problem. PW19 had come to the scene of occurrence initially. However, he had not seen how the injury was caused to the deceased. PW21 has turned hostile to the prosecution. PW22 was the Circle Inspector of police during the relevant time who conducted investigation into the crime. PW23 was the Judicial First Class Magistrate who
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had recorded the statement under 164 Cr.P.C. of Thomas, S/o Devassy which were marked as Exts.P2, P2(a) and P2(b).
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and he saw them calling the accused. Immediately, he also sustained an injury with a stone. He sustained two injuries as evident from the wound certificate Ext.P8. He cried and ran back and on the way he saw his father. Next day morning, after the injured were taken to the hospital, the FI statement was given.
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stating that PW2 and Roy had fallen down. Hence, the evidence of PW1 and PW2, though stated to have some contradictions, those are not material as far as the identification of accused are concerned. Therefore, there is enough proof to come to an inference that the deceased had died and PW2 got injured at the hands of the first accused. The Court below had acquitted the second accused only on the ground that he cannot be constructively made liable for the offence committed by first accused invoking S.34 I.P.C. as he was only holding Roy and PW2 and the Court did not believe that he was holding them to enable first accused to hit them with a chopper. But the fact that the first accused had committed the crime is spoken to by PW1 and PW2 and no further evidence is required in the matter to find the accused guilty of the offence of murder as well as attempting to commit murder.
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name, first accused came from the house of Eayannam Thomas with a chopper and the second accused Biju came with a stone. Roy asked him why he is coming with a chopper. Immediately the second accused hit him with the stone. In the meantime, first accused brandished the chopper against Roy. Roy moved back. Immediately second accused went and caught hold of Roy and the first accused hit him on his head and hands. Roy fell down. Thereafter, they proceeded against PW2 and he also suffered injuries. Some omissions and contradictions were there with reference to the incident that happened prior to the incident, which is not the subject matter of the case. Another omission was regarding his evidence that he saw the first accused coming with a chopper and the second accused coming with a stone. In the FI statement, it is clearly stated that when they reached the house of Thomas, Roy called them “ഉടനനെ കുഞഞ്ഞ് കയയ്യിനലലൊര വലൊക്കതയ് യ യ, ബയ്യിജു ഓടയ്യി ഞങളുനട അടുത്തു വന്നപപലൊൾ” Further it is stated that “ബയ്യിജു എനന്റെ ഇടതു ഭലൊഗയ കഴുതയ്യിനയ, തലയയ കല്ലു നകലൊണഞ്ഞ്
ഇടയ്യിച.” Therefore, we do not think that there is any much omission as stated, which may amount to contradiction.
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to the fact that PW1 was injured by second accused Biju with a stone, that first accused had inflicted injury on Roy and first accused had inflicted injury on PW2. Therefore, the involvement of the first accused in the crime when believed from the evidence of PW1 and PW2 is rather clear.
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chopper when his name was called by deceased Roy? Definitely, he had an intention to commit the crime of murder and it can never be treated as an act of self defence especially when there is no evidence to show that the witnesses or Roy were not wielding any weapons.
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do not think from the facts of the case that a different view is possible. We do not find any merit in the contentions urged, and there is no reason to interfere with the sentence imposed on A1.
Appeal is, therefore, dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE
Sd/-
P.SOMARAJAN, JUDGE
Rp
//True Copy//
PS to Judge
2 issues framed by the court
Whether the conviction of the first accused for murder and attempted murder under S.302 and 307 IPC warrants interference on appeal.
Whether the second accused can be held liable under S.34 IPC as an abettor.
4 provisions across 1 enactments
KUNJU @ DEVASYA S/O.JOSEPH
STATE OF KERALA
A.M. SHAFFIQUE
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
