Partly allowed

Kurian @ Jiji v. State of Kerala

Kerala HC8 Feb 2018CRL.A/844/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal in part, setting aside the conviction under Section 302 IPC for murder and substituting it with conviction under Section 304 Part I IPC for culpable homicide. The court held the single fatal blow arose from a scuffle rather than premeditated murder.

What did the court decide?

Conviction under Section 302 IPC set aside; guilty of offence under Section 304 Part I IPC; sentence of detention undergone ordered as sentence, accused released forthwith if not detained for othercas

Kurian @ Jiji 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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THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939

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CRL.A.No. 844 of 2013 (G)

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AGAINST THE JUDGMENT IN SC 421/2009 of ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA, DATED 03-05-2011

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APPELLANT / ACCUSED : -

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KURIAN @ JIJI, CR. NO.9534, CENTRAL PERSON, VIYYUR.

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BY ADV.SRI.JOSWIN THAMBI KUNNATH (STATE BRIEF)

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RESPONDENT / COMPLAINANT :-

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR

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BY PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2017, THE COURT ON 08.02.2018 DELIVERED THE FOLLOWING:

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DMR/-

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A.M.SHAFFIQUE & P. SOMARAJAN, JJ.

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Crl.Appeal No.844 of 2013 -----------------------------------------------Dated this the 8^th day of February, 2018

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J U D G M E N T

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Somarajan, J.

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The accused came up with this appeal against the judgment of conviction under Section 302 IPC and the order of sentence thereunder, dated 03.05.2011, in S.C.No.421 of 2009 of the IIIrd Additional Sessions Judge (Adhoc-I), Thodupuzha.

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The victim herein is one Thankachan aged 45 years who met with a sad death in the hands of accused on 23.08.2006 at 4.30 p.m. at the courtyard of the house of accused. The motive behind the crime is the illicit relationship between the wife of accused and the deceased. A scuffle between the accused and deceased took place in connection with the alleged illicit relationship. PW1, wife of accused, turned hostile. PW3 also turned hostile. The prosecution mainly relied on the oral evidence tendered by PW2 and recovery of the weapon used for commission of the offence under Section 27 of the Evidence Act, under Exhibit P7

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Crl.Appeal No.844 of 2013

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mahazar. Exhibit P7(a) is the relevant portion of the disclosure statement. The accused, during his examination under Section 313 Cr.P.C., had admitted that he had sustained injuries, but not remembering whether he had changed his dress after the incident. Exhibit P15 is the FSL report. Item Nos.1 to 3 and 7 in the FSL report are belonged to the deceased. Item No.4 is MO1 knife. Item Nos.5 and 6 are wearing apparels of the accused.

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The only eye witness cited by the prosecution to prove the guilt of accused is none else his wife, PW1. But, she turned hostile to the prosecution. But, the oral evidence tendered by PW1 would sufficiently show that the accused and the victim were last seen together at the place of occurrence, the house compound of PW1, on the alleged date and time of incident. Even according to her, the deceased entrusted some amount with the accused for purchasing some liquor and came there demanding liquor just before the commission of offence. The wife of one Appachan who was present in the house compound asked PW1 to keep away from the place as

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Crl.Appeal No.844 of 2013

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there is chance of some quarrel between the accused and deceased. So she went along with the wife of Appachan to her house. It is after some time the accused came to the house of Appachan and fell down in the courtyard of Appachan. Fearing some untoward incident PW1 rushed to her house compound and found the victim Thankachan lying dead there. She was declared hostile on denial of her illicit relationship with the victim. The oral evidence tendered by PW1 would sufficiently show that no one else was there in her house compound at the time of alleged incident. The accused and the victim alone were present in the house compound. She went away from her house fearing some quarrel between the accused and the victim as per the instruction given by the wife of one Appachan. It is just after that the accused came there and fell down at the base of a tree at the courtyard of Appachan. Seeing this, fearing some untoward incident, PW1 rushed to her house compound and found Thankachan lying dead after sustaining injuries.

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Crl.Appeal No.844 of 2013

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The Doctor who conducted autopsy on the body of the deceased recorded the following ante-mortem injury:

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“Incised penetrating wound 4x1 cm obliquely placed on the left side of front of chest with its lower right end touching the midline and 2 cm below the sternal notch. Both ends were sharply cut. It entered the left chest cavity by cutting through the manubrium of the breast bone and ended in the lumen of the arch of aorta by penetrating its upper wall, at the level of origin of the left subclavian artery. The track of the wound was directed backwards, downwards and to the left and had a minimum depth of 7 cm. The left chest cavity contained about 1.5 litres of fluid blood and clots. The left lung was partially collapsed.”

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The cause of death is stated to be due to penetrating injury sustained to the chest.

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The Doctor who conducted post-mortem examination is of the view that the above said injury is sufficient to cause death in the ordinary course. The medical evidence adduced and the expert opinion that the injury noted as ante-mortem could be possible by the user of a weapon having a pointed tip similar to MO1, the scientific evidence adduced through Exhibit P15 FSL report showing the presence of human blood

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Crl.Appeal No.844 of 2013

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group of “B” in MO1 knife, which is item No.4 in Exhibit P15 FSL report, and the presence of very same blood group of human blood in all the items collected from the body of the deceased, which are item Nos. 1 to 3 and 7, would sufficiently show that MO1 knife was stained with the very same blood group of the victim - “B” group of human blood. The recovery of MO1 knife based on Exhibit P7(a) disclosure statement alleged to have been confessed while under custody, proved through PW8, would be an additional link pointing towards the guilt of accused as the accused did not forward any explanation regarding the presence of human blood group of “B” in MO1 knife.

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This has to be read along with the injuries alleged to have been sustained by the accused which was admitted by him during the course of Section 313 examination. This was also spoken by PW1 wife and hence gives sufficient corroboration to the oral testimony of PW1. It is not explained by the accused how he had sustained injury on his hand.

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Crl.Appeal No.844 of 2013

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Yet another circumstance was also brought out by the prosecution against the accused through PW2. On seeing the injury on the hand of accused, PW2 enquired about it and he was told by the accused that it was inflicted by the victim Thankachan. So, the circumstances brought out by the prosecution pointing towards the guilt of accused are complete and is consistent with the guilt of accused alone and no other hypothesis inconsistent with the guilt of accused is possible.

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Going by the post-mortem examination certificate, it is seen that there is only one incised penetrating wound having measurement of 4x1 cm obliquely placed on the left side of front chest. No other injury is reported. There is only a single blow with a sharp edged weapon like MO1. The injury alleged to have been sustained by the accused on his forearm would sufficiently show the possibility of a scuffle between the accused and the victim. There is only a single blow on the body of the deceased with MO1 knife. The possibility of having inflicted injury by way of private defence

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Crl.Appeal No.844 of 2013

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or during the course of scuffle cannot be ruled out and hence it cannot be brought under the purview of Section 300 IPC as there is no intentional murder or murder with knowledge. The offence proved would come under the purview of Section 304 part I IPC as there is no pre-meditated commission of offence. Hence, we are of the considered view that the finding of guilt of accused under Section 302 IPC and the conviction and sentence thereunder are liable to be interfered and we do so by setting aside the conviction and the sentence under Section 302 IPC. The accused is found guilty for the offence punishable under Section 304 Part I IPC and he is convicted thereunder.

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While considering the aggravating and mitigating circumstances under which the offence was committed and the detention already undergone by the accused right from 03.05.2011 for a period of six years and 9 months, we are of the view that the said period of detention would be sufficient sentence for the offence under Section 304 Part I IPC.

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Crl.Appeal No.844 of 2013

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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 the sentence thereunder are hereby set aside. The accused is found guilty of offence punishable under Section 304 Part I IPC and convicted thereunder. The sentence of detention already undergone, for a period of 6 years and 9 months right from 03.05.2011, is ordered as the sentence for the offence under Section 304 Part I IPC. Hence, the accused shall be released forthwith, if his detention is not necessary in connection with any other case.

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A.M.SHAFFIQUE (JUDGE)

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P. SOMARAJAN (JUDGE)

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DMR/-

Kurian @ Jiji v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kurian @ Jiji v. State of Kerala

Case brief

What is this about?

What did the court decide?

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