Dismissed

Krishnan S/O. Alakan, C.NO.846, Central Prison, Viyyur v. State of Kerala

Kerala HC19 Mar 2018CRL.A/845/2013

Case brief

AI extract

What is this about?

In a criminal appeal against conviction and sentence for murder and voluntarily causing hurt, the Court examined prosecution evidence including eyewitnesses and medical testimony regarding a fatal assault with a heavy stone, finding the evidence reliable and the sentence appropriate.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence under Sections 302 and 324 IPC sustained.

Krishnan S/O. Alakan, C.NO.846, Central Prison… — 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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MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939

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CRL.A.No. 845 of 2013 (G)

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AGAINST THE JUDGMENT IN SC 186/2011 of III ADDL. SESSIONS COURT, THRISSUR DATED 28-02-2013 AGAINST THE ORDER IN CP 77/2010 of J.M.F.C.-I, THRISSUR

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APPELLANT/ACCUSED : -

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KRISHNAN, S/O. ALAKAN, C.NO.846, CENTRAL PRISON, VIYYUR.

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BY ADV. AANANDAN PILLAI, STATE BRIEF

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RESPONDENT / COMPLAINANT : -

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STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, THRISSUR EAST POLICE STATION, (CRIME No.616 OF 2010)

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BY PUBLIC PROSECUTOR SRI. S.U. NAZAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2018, THE COURT ON 19.03.2018 DELIVERED THE FOLLOWING:

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DMR/-

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A.M.SHAFFIQUE & P. SOMARAJAN, JJ. -----------------------------------------------Crl.Appeal No.845 of 2013

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Dated this the 19^th day of March, 2018

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J U D G M E N T

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Somarajan, J.

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Against the judgment of conviction and orders of sentence under Sections 302 and 324 IPC in Sessions Case No.186/2011 of the IIIrd Additional Sessions Court, Thrissur, dated 28.02.2013, the accused came up with this appeal.

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The deceased is one Biju who was living with PW2 as husband and wife. On the ill fated day, ie. on 02.08.2010 at 8.00 p.m. while the victim, PW2 and one Ezhimala (an age old person) were talking together sitting on the side of a bathroom attached to the Sakthan Thampuran Bus Stop, Thrissur, the

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accused came there and invited PW2 so as to satisfy his lust towards her which was rightfully refused both by PW2 and her husband, the victim, which has resulted in a scuffle. The accused inflicted hit injuries on PW2 and Ezhimala. Though the victim tried to escape from the place, the accused chased after him and during that course the victim fell on the ground. Thereon the accused inflicted a hit injury on his head by using

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a stone weighing 28Kg and the victim succumbed to the injuries, is the prosecution version.

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Crl.Appeal No.845 of 2013

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The learned Sessions Judge, on consideration of the evidence and on hearing both the parties, found that the accused is guilty of offence punishable under Section 302 IPC and he was convicted thereunder and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one week and imprisonment for a period of one year for the offence under Section 324 IPC with a direction to run the sentences concurrently.

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PW1 and PW2 are the two eye witnesses. PW1 had given a detailed picture of what actually happened on the ill fated day. She had seen the attack unleashed by the accused on the victim, deceased Biju, and also to PW2 and one Ezhimala. According to her, PW2 and the above said Ezhimala were actually resting on the side of a toilet-cum-bathroom attached to Sakthan Thampuran Bus Stop, Thrissur. She was employed as the cleaner of the said toilet-cum-bathroom and came there in connection with her employment. So, her presence in the place of occurrence cannot be doubted even for a moment. She had undergone a lengthy cross examination and nothing was elucidated to discredit her evidence or to show any enmity or hatredness to the accused

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Crl.Appeal No.845 of 2013

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except that she was maintaining a good relationship with the police officials in the nearby police station. The abovesaid admission made by her itself cannot be a ground to discard her oral testimony, if her oral evidence otherwise found to be reliable. As discussed earlier, her presence in the place of occurrence is highly probable and acceptable. No instance of hatredness or enmity to the accused was either brought out or even suggested. On the other hand, her version is found to be trustworthy and acceptable as it touches each and every minute details of the alleged incident. No contradictions or omissions were brought out.

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The oral evidence tendered by PW1 gives sufficient corroboration to the injured witness, PW2. PW2 had also deposed about what actually happened on the ill fated day by 8.00 p.m. and she had narrated even the genesis of the alleged incident and the attack unleashed by the accused to herself and one Ezhimala and also the attack on the victim. The only inconsistency brought out is that, according to her, the stone used for inflicting injury on the victim may have a weight of 8Kg. But, MO1 is having a weight of 28Kg. PW2 is an illiterate lady

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Crl.Appeal No.845 of 2013

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aged 35 years (at the time of examination) and hence the same cannot be taken as a material inconsistency as what is spoken by her is not based on any authority, but reflects only her assessment regarding the weight of the stone on its appearance. On the other hand, the oral evidence tendered through PW3 Doctor who attended PW2 and Exhibit P2 wound certificate would give sufficient corroboration by medical evidence to the oral testimony of PW2. In other words, the oral version given by PW2 stood as corroborated by the oral evidence of PW1 and also by the medical evidence adduced by the prosecution through PW3 and Exhibit P2 which are in tune with what is deposed by PW2.

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The oral evidence tendered by PW2 and PW3 further stood as corroborated, to a certain extent, with respect to its genesis and the first episode resulting injury to PW2, by the evidence of PW5, though she turned hostile to the prosecution.

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Their evidence further stood as corroborated by the medical evidence. PW4 is the Doctor who conducted autopsy on the body of the deceased and issued Exhibit P4 post mortem certificate, in which the following injuries were noted as antemortem injuries:-

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Crl.Appeal No.845 of 2013

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“1. Lacerated wound 7x3 cm on the left eyebrow crossing the midline at the root of nose, nasal septum found fractured underneath. There was fracture of outer aspect of orbit 4cm long. The maxilla was found fractured at midline. There was fracture dislocation of upper 4 incisors.

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2. Abraded contusion 4x4cm on the top of nose including the ala of nose.

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3. Abraded contusion 1.5x1cm on the right side of face 6cm outer to midline.

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4. Abraded contusion 10x6cm on the left side of face 5cm outer to midline.

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5. Lacerated wound 2x2x1cm on the front of chin on midline. There was fracture dislocation of lower 4 incisors.

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6. Lacerated wound 1.5x1x0.5cm on the outer aspect of right eyebrow.

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7. Lacerated wound 8x2.5x bone deep on the right side of head 4cm above right ear.

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8. Lacerated wound 2x0.5cm on the upper aspect of pinna of right ear.

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9. Lacerated wound 4x2x0.5cm on the right side of head just back to right ear.

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10. Lacerated wound 3x1.5x bone deep on the back of head 12cm back to right ear over the external occipital protuberance.

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11. Abraded contusion 5x5 cm on the back of head

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3.5cm above injury No.10.

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Crl.Appeal No.845 of 2013

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12. Abrasion 8x3 cm on the front of left shoulder. There was fracture of left clavicle and first two ribs on left side. 13. On dissection under the injuries No.7, 8, 9, 10 and 11, there was contusion of the scalp 23x10 cm on the right side and back of head. There was comminuted fracture 12x8 cm involving the right temporal and parietal bones. There was a fissured fracture 12cm long extending from the front aspect of comminuted fracture. There was another fissured fracture on the frontal bone 6cm long crossing the above described fissured fracture. There was another fissured fracture extending from the lower part of the comminuted fracture to the petrous part of temporal bone right side crossing the midline to the left temporal bone. There was subdural haemorrhage on the right parietal and occipital lobes. There was subarachnoid haemorrhage on the entire cerebral and cerebellar hemispheres.

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Other findings - Mouth and pharynx was normal. Neck and its structures were normal and intact. Oesophagus normal. Trachea and bronchi was normal. Lungs were moderately congested. Walls, valves and chambers of the heart were normal. Coronaries patent. Liver, spleen and kidneys were pale. Pancreas and adrenals were normal. Stomach and contents weighed 200gms and contained bloody fluid. Stomach mucosa was normal. Intestines and mesentery was normal. Urinary bladder was empty. Genital organs were normal. Spinal column and cord was intact.”

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Crl.Appeal No.845 of 2013

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Injury Nos.7 to 11 are external injuries producing corresponding internal injury No.13 and, according to PW4, it could be possible by MO1 stone. Further, according to him, injury Nos.7 to 11 are the result of a single impact which gives sufficient corroboration to the oral version given by both PW1 and PW2 regarding the attack unleashed by the accused over the head of the victim using MO1 stone. The cause of death is due to the blunt injury sustained to head. He had also ruled out the possibility of causing such blunt injuries over the head by a fall. In short, the medical evidence adduced through PW4 Doctor and Exhibit P4 post mortem examination certificate further gives sufficient corroboration to the oral testimony of two eye witnesses, PW1 and PW2.

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The non examination of Ezhimala in the said circumstance may not have much relevance. It is now well settled that it is not the number of witnesses, but the reliability of the evidence adduced that matters and hence we could not find any merit in the said argument.

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The recovery of blood stained stone from the place of occurrence by the Scientific Assistant and detection of human

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Crl.Appeal No.845 of 2013

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blood on MO1 stone would be relevant to show the identity of the weapon used for the commission of offence, which also gives sufficient corroboration to the oral testimonies of PW1 and PW2. The dress worn by the accused were found to be stained by human blood, though the group of the blood was not detected. But, the source of human blood found in his dress was not explained by him. The fact that he had attacked two other persons on the same day, ie. PW2 and one Ezhimala, would be relevant and, in the absence of grouping of blood, it cannot be said that it was the blood stain of the victim/deceased.

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It is not at all a pre-meditated, pre-planned

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commission of offence. But, the fact that the accused had used a stone having a weight of 28Kg for inflicting injury on a vital part of the body, ie head, of the victim, causing very serious injuries would satisfy the intention on the part of the accused to kill the victim and hence the ingredient which constitute the first and second limbs of Section 300 IPC, an intentional killing with full knowledge, established. Hence, the finding of guilt of accused under Section 302 IPC and the conviction thereunder do not call for any interference.

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Crl.Appeal No.845 of 2013

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The commission of offence under Section 324 IPC is also well evident from the oral evidence of PW1 and PW2 and the medical evidence tendered through PW3 and Exhibit P2 wound certificate and hence there cannot be any interference to the conviction under Section 324 IPC against the accused.

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The sentence awarded for the offence under Section 302 IPC being a lesser one does not call for any interference by this Court. The sentence awarded under Section 324 IPC also strikes a balance between the mitigating and aggravating circumstances, hence deserves no interference.

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In the result, appeal is dismissed.

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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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DMR/-

Krishnan S/O. Alakan, C.NO.846, Central Prison, Viyyur v. State of Kerala

Case brief

What is this about?

What did the court decide?

Krishnan S/O. Alakan, C.NO.846, Central Prison, Viyyur 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

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