In a fatal chopper assault case, the court upheld the first accused's convictions and sentences, refusing to reduce murder to culpable homicide. It allowed the second accused's appeal, set aside his conviction and sentence, and ordered his release.
The second accused's conviction and sentence were set aside, and he was set at liberty.
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 N.ANIL KUMAR
TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941
CRL.A.No.620 OF 2015
AGAINST THE JUDGMENT IN SC 135/2012 DATED 27-03-2015 OF I ADDITIONAL SESSIONS COURT, ERNAKULAM
(CP 3/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR)
(CRIME No.1096/2011 OF Kalady Police Station)
APPELLANT:ACCUSED No.1:-
HENDRY JOSE, S/O.HENDRY, KURUPPATH HOUSE, KONGORPILLY KARA, AIANGAD VILLAGE, NOW RESIDING NEAR MANACKAPPADY JUNCTION, PUTHIYEDAM KARA, KANJOR KIZHAKKUMBHAGOM VILLAGE.
BY ADVS. SRI.RENJITH B.MARAR SMT.RESHMI JACOB SRI.K.V.SABU
RESPONDENT:COMPLAINANT :-
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR -SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2019, ALONG WITH CRL.A.1154/2015, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:
Crl.A.Nos.620 & 1154 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941
CRL.A.No.1154 OF 2015
AGAINST THE JUDGMENT IN SC 135/2012 DATED 27-03-2015 OF
I ADDITIONAL SESSIONS COURT, ERNAKULAM
(CP 3/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR) (CRIME No.1096/2011 OF Kalady Police Station)
APPELLANT:2 nd ACCUSED :-
SUJITH @ VELUMBAN, S/O.KRISHNAPPAN, VELUTHEDATH VELI COLONY, PUTHIYAKAVU HARIJAN COLONY, PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. (C.No.2353, CENTRAL PRISON, VIYOOR.)
BY ADVS. SRI.LAVARAJ.M.G. SRI.E.V.GEORGE
RESPONDENT:COMPLAINANT :-
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY SR.PUBLIC PROSECUTOR -SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2019, ALONG WITH CRL.A.620/2015, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:
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J U D G M E N T
N.ANILKUMAR, J:
Appellant in Crl.A.No.620/2015 is the first accused in S.C.No.135/2012 on the file of the First Additional Sessions Court, Ernakulam. Appellant in Crl.A.No.1154/2015 is the second accused therein.
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undergo one year rigorous imprisonment for the offence under Section 308 IPC and he was further sentenced to undergo rigorous imprisonment for three months more for the offence punishable under Section 323 of IPC. The above sentence of A1 was ordered to run concurrently. A1,A2 and A5 were found not guilty of the offence punishable under Section 120B read with 302 of the IPC and they were acquitted for the said offence. A5 was found not guilty of the offence punishable under Section 109 read with 302 of IPC and he was acquitted for the said offence. A3,A5,A6,A7 and A8 were found not guilty for the offence punishable under Section 212 of IPC and they were acquitted for the said offence. A3 was found not guilty for the offence punishable under Section 419 of IPC and he was acquitted for the said offence. A3,A5,A6,A7 and A8 were found not guilty for all the offences charged against them and they were acquitted for the said offences. Challenging the conviction and sentence, the accused 1 and 2 preferred the above appeals.
follows:-
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The first accused was on inimical terms with CW1/PW33 Gibin Joy and deceased Sabu on account of filing a complaint before the Police. On 19.10.2011, A1,A2 and A5 conspired together to commit murder of Sabu for which they assembled at the residence of A5 in Sreemoolanagaram Panchayath. Thereupon, A5 supplied weapons to A1 and A2 for committing the offence. On 19.10.2011 at 7.30 pm, A1 as rider and A2 as pillion rider proceeded on the motorcycle belonging to the 7th accused to Kanjoor, at Manakkapadi. While so, on seeing PW33, the first accused slashed the chopper towards his head, pushed down PW2, who was sitting with PW33. Thereafter, the first accused beat deceased Sabu and inflicted injuries on his back and head with MO1 chopper. Second accused also inflicted cut injury on the head of the deceased Sabu. Although the deceased was taken to the Little Flower Hospital, Angamaly, he had succumbed to the injuries later. It is further alleged that A3,A5,A6,A7 and A8 harboured A1 and A2, knowing fully well that they were involved in a murder case, allowed them to escape and provided secret hiding places. Thus,the accused 1 to 8 have committed the aforesaid offences.
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Statement before PW38 on 19.10.2011. Based on Ext.P49 statement given by PW33, PW38 registered Ext.P55 FIR. As requested by PW38, PW.26 who was then working as Scientific Assistant, DCRB, Ernakulam arrived at the place of occurrence and had taken the blood stains in a cotton gauze and collected three samples and handed over to PW38. On 19.10.2011 in the night, PW39 took over the investigation of the crime. On 20.10.2011, he went to the Little Flower Hospital, Angamaly and prepared Ext.P4 Inquest Report in the presence of witnesses. In Ext.P4 Inquest Report, PW39 noted that the death of Sabu was due to the injuries inflicted on his head with chopper. On 20.10.2011, PW39 went to the place of occurrence and prepared Ext.P10 scene mahazar. PW39 prepared Ext.P42 mahazar regarding the seizure of packets collected from the place of occurrence and entrusted with the Sub Inspector of Police, kalady. On 21.10.2011, he had seized MO12 and MO13 chappals of the deceased Sabu produced by his brother as per Ext.P8 mahazar. On 27.10.2011, at about 5.30 p.m, PW39 arrested A1 and A2 and had produced them before the court. PW39 filed an
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application seeking police custody of A1 and A2. The court granted it. On being questioned, A1 confessed by way of Ext.P13 statement that he had concealed the chopper used for the commission of the offence in a building at Kalamassery and if he was taken to the place, he would show the chopper and the place where it was concealed. Accordingly, on 3.11.2011 he went to the place with A1 as led by A1 and recovered MO-1 chopper as identified by A1 and handed over to him from the sunshade of an old building at Kalamassery. PW39 prepared Ext.P11 mahazar in the presence of witnesses. PW39 further stated that on being questioned, A2 gave Ext.P64 confession statement disclosing that he had concealed the chopper used for the commission of the offence in an old building at Kalamassery and if he was taken to the place, he would show the chopper and the place where it was concealed. Accordingly on 3.11.2011 he went to the place along with A2 and as led by A2, he had recovered MO2 chopper taken by A2 from the place near the bathroom in an old building at Kalamassery and handed over the same to PW39 as per Ext.P12 mahazar in the presence of witnesses. Consequently, PW39 produced Mos.1 and 2
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choppers before court as per Ext.P70 property list. According to PW38, PW11 was present and was a signatory to Exts.P11 and P12 mahazars prepared by him while recovering Mos.1 and 2 in accordance with Section 27 of the Indian Evidence Act (for short'the Evidence Act'). PW38 obtained the report from the Forensic Laboratory regarding the examination of the material objects through PW26 and produced before PW39. As instructed by PW38, PW28 the then Village Officer, Kanjoor prepared Ext.P43 site plan specifying the place of occurrence. He also obtained Ex.P44 report from the Assistant Engineer, KSEB, Kalady stating that there was no electric supply interruption from 6pm on 19.10.2011 till 6 am on 20.10.2011 at Kanjoor, Manakkappady area. PW39 questioned the witnesses, completed the investigation and filed the chargesheet before the learned Judicial First Class Magistrate Court-I, Perumbavoor where the case was taken on file as CP NO.3/2012. The learned Magistrate committed the case to the Sessions Court, Alappuzha on 7.3.2012 after complying with the usual
formalities.The learned Sessions Judge took cognizance of the offences under Sections 323,308,302,212,419,
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120B,109 and 34 of IPC and registered the case as SC 135/2012 from where the case was made over to the
Additional Sessions Court, Ernakulam for trial and disposal.
evidence, the accused was questioned under Section 313(1) (b) of Cr.P.C.with regard to the incriminating circumstances against him in the evidence for the prosecution. Their defence is one of total denial.
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trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C.The accused was therefore called upon to enter on his defence and adduced evidence which he might have in support thereof. However, no defence evidence was adduced.
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PW39, Circle Inspector of Police noted the fatal injury on the head of the deceased. Column No.11 in Ext.P4 is pertaining to the apparent cause of death. PW39 noted that the victim died as a result of head injury inflicted with chopper.
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below shoulder and the 2nd one being just to the left of midline. The first injury showed a skin deep wound 2x0.5x0.6cm at its middle.
C.Other findings
Air passages contained mucoid froth. Lungs (right 309 gm left 382 gm) pale. Heard 258 gm, Branches of coronary arteries showed varying degrees of atherematous thickening upto 40%.
Liver (934gm) was pale with micromodular cirrhesis. Spleen (113gm) contracted. Stomach (503 gm) contained soft rice, peas and other unidentifiable food particles having no unusual smell, mucosa normal. Urinary bladder empty. Other internal organs pale. Otherwise normal.”
PW30 testified that the apparent cause is that the
victim sustained incised penetrating wound to his
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head. PW30 reiterated that injury No.1 cited supra is sufficient to cause death in the ordinary course of nature. Yet another injury noticed on the head of the deceased could be caused by forcible impact with blunt edge of a weapon or object. PW30 confirmed that injury Nos.1,3,4,5,6,7,8 and 11 could be caused with blunt edge of MO1. PW30 further reiterated that injury No.2 could be caused with blunt edge of MO2 or similar weapon.
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on examination of the patient.
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slashed the chopper towards him twice and somehow he managed to evade the attack. Considering the seriousness of the situation, deceased Sabu directed them to escape from the place immediately. Sensing danger, PW33 and PW2 ran towards north. After some time, when PW33 looked back, he found A1 inflicting injuries on the head of Sabu with MO1 chopper. Immediately, according to PW33, he heard the sound of the motorcycle leaving the place after committing the offence. PW33 and PW2 came back the place where they found Sabu lying in a pool of blood. PW33 took out a small piece of cloth and tied around the head of Sabu. In the meanwhile, PW5 Johnson, who is the brother of Sabu came there. PW5's brother's son brought his car immediately and thereafter Sabu was taken to the Little Flower Hospital,Angamaly where the Doctor on examination stated that Sabu was brought dead.
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PW33 and PW2 identified MO4 cap,MO6 lungie and MO7 shirt worn by A1 at the time of occurrence. They also
identified MO5 lungie worn by A2 at the time of occurrence. According to him, on the next day, he went to the Government Hospital, Kalady as he was suffering from severe pain on his ear. In the hospital, he was examined by PW31 and issued Ext.P46 medical certificate. PW31 also examined PW2 on the very same day around 7.45 pm and issued Ext.P47 certificate.
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sustained injuries on the head and neck. In his deposition, PW1 made an addition stating that he saw A2 using a chopper and inflicting injuries on the head of Sabu and after that, A1 and A2 left the place by the motorcycle. PW1 identified MO1 as the chopper used by A1 and MO2 as the chopper used by A2 for inflicting injuries on the deceased Sabu. All other material objects were also identified. In connection with the occurrence, PW1 gave Ext.P1 164 statement before the learned Judicial First Class Magistrate, Kothamangalam.
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bike, one of the children of Vettikkadan Joy blocked his bike and so, he has caused some trouble to one among them. In the next day, PW4 went to the Little Flower Hospital and found the deadbody of Sabu. He was present in the hospital when PW39 prepared an inquest report. He had put his signature in Ext.P4 report prepared by PW9.
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when PW39 prepared the scene mahazar by Ext.P10. PW10 also identified Mos.13 and 14 chappals recovered from the place of occurrence.
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A2. PW30 the Doctor, who conducted postmortem examination, stated that the cause of death of the deceased was due to the incised penetrating wound sustained to the head. The fact that A1 inflicted injuries on the head of the deceased is clear from the evidence adduced by PW33 and PW2. So far as accused No.2 is concerned, the evidence adduced by the prosecution is weak. It is not possible to hold that A2 inflicted injuries on the head of the deceased as alleged. Merely because PW38 recovered MO2 sword on the basis of confession statement alleged to have been given by A2, the same itself is not sufficient to hold that A2 inflicted injuries on the head of the deceased. PW30 also stated that MO1 is sufficient to inflict similar injuries sustained to the deceased. More so, PW2 and PW33 had not seen using MO2 chopper towards the deceased. The trial court has found that there is no criminal conspiracy between the accused. All other accused except A1 and A2 were acquitted by the court below. Going by the entire evidence, we are of the view that the role of A2 is not clearly proved by the prosecution beyond doubt. However, the prosecution has succeeded in adducing evidence against
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A1 to prove that A1 inflicted head injury on the deceased and the deceased succumbed to the injury sustained to him.
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deceased. On going through the injuries in Ext.P45 Postmortem Certificate, the injuries could not have been caused by accident or negligence.
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death in the ordinary course of nature and claim that he is not guilty of murder. If he inflicts injuries of that kind,he must face the consequences unless it is shown that the injury was accidental or otherwise unintentional. In the case at hand, MO1 was applied on the head of the deceased resulting severe head injury. This would lead to the inference that the first accused did the overt act with the intention of causing death to the victim. This categorical opinion of PW30 was not assailed in crossexamination. Since the injuries were caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the first accused or its consequences. The victim also died within a short while due to the injuries sustained. Going by the dictum laid down in Virsa Singh's case, we are of the view that all the acts of the first accused would squarely fall within the first category of Section 300 IPC as these acts were done with the intention of causing death. The citations placed by the learned counsel for the first accused do not lay down a different proposition of law. For all the foregoing discussions, we are of the view that
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there are no valid grounds to alter the conviction of the first accused from one under Section 302 to that under Section 304 Part II of IPC. In our view, the judgment and order of conviction passed by the trial court as against the first accused was based upon proper appreciation of evidence and the materials placed on record.
In the result, the Crl.A.No.620/2015 filed by the first accused is dismissed. Crl.A.No.1154/2015 filed by the second accused is allowed. We uphold the judgment and conviction and order of sentence passed by the court below as against the first accused. The conviction and sentence imposed by the court below as against the second accused stand set aside and he is set at liberty.
Sd/-
A.M.SHAFFIQUE, JUDGE
sd/-
N.ANIL KUMAR, JUDGE
MBS/
2 issues framed by the court
Was the second accused's participation in the fatal assault proved beyond reasonable doubt?
Should the first accused's murder conviction be altered to culpable homicide under Section 304 Part II IPC?
Colour shows how this judgement treated each authority
Tularam v.State of Madhya PradeshReferred¶141
Tularam v.State of Madhya Pradesh [2018 Crl.L.J 2590]
Gurwinder Singh and others v. State of Punjab and othersReferred¶142
Gurwinder Singh and others v. State of Punjab and others [2018 Crl.L.J 2974]
Nandlal v. State of MaharashtraReferred¶143
Nandlal v. State of Maharashtra [2019 Crl.L.J 2420]
Virsa Singh v. State of PunjabApplied¶150
Virsa Singh v. State of Punjab [AIR 1958 SC 465] · Who else cites this
5 provisions across 1 enactments
HENDRY JOSE
SUJITH @ VELUMBAN
STATE OF KERALA
A.M.SHAFFIQUE
N.ANIL KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
