Criminal appeal against conviction for murder and offences under the Arms Act. The court examined medical and ballistic evidence, rejected the defence that death resulted from infection or medical negligence, and upheld the finding that the fatal shot was fired from the appellant's licensed gun. Conviction and sentence affirmed; appeal dismissed.
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
MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941
CRL.A.No.629 OF 2015
AGAINST THE JUDGMENT IN SC 883/2012 DATED 31-03-2015 OF ADDITIONAL SESSIONS COURT - V, KOZHIKODE
APPELLANT/ACCUSED:
K.K.MAMMAD AGED 70 YEARS S/O KUNHAYAMMED, KOOTTALA HOUSE, PUTHUPPADI-PO, EANGAPPUZHA AMSOM, CHAMAL DESOM, KOZHIKODE DISTRICT.
BY ADVS. SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR SRI.C.A.NAVAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
SR.P.P.- SRI. S.U. NAZAR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1006-2019, THE COURT ON 02-09-2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.629/15
-:2:-
J U D G M E N T
Shaffique, J.
This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 5th Additional Sessions Judge, Kozhikode in S.C. No.883 of 2012 arising out of Crime No.183 of 2010 of Thamarassery Police Station by which he was found guilty for offences under Sections 302 and 506(ii) of the Indian Penal Code, 1860 (for short 'IPC') and Section 27(1) and 28 of the Arms Act, 1959 (for short 'Arms Act'). He was sentenced to suffer imprisonment for life which according to the Court means till he dies in prison and also to pay a fine amount of 5,00,000/- (Rupees Five Lakhs only) with a default stipulation of rigorous imprisonment for one year for offence under Section 302 of I.P.C. From the amount of fine, if realized, a sum of 3,00,000/- (Rupees Three Lakhs only) was directed to be paid to the widow of the deceased forest guard for the educational expenses of their children. `1,00,000/- (Rupees One lakh only) was directed to be given to the mother of the deceased as compensation under Section 357(c) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). For offence under
Crl.Appeal No.629/15
-:3:-
Section 506(ii) of IPC, he was sentenced to suffer simple imprisonment for a period of five years. He was further sentenced to undergo simple imprisonment for a period of three years and to pay a fine of 25,000/- (Rupees Twenty Five Thousand only) in default of which to undergo simple imprisonment for one year for offence under Section 27(1) of Arms Act. Appellant was also sentenced to suffer simple imprisonment for a period of three years and to pay a fine of 25,000/- (Twenty Five Thousand only) with a default stipulation of simple imprisonment for one year for offence under Section 28 of Arms Act.
On 25/03/2010 at 01.00 a.m., based on credible information that the appellant was out there in the forest for hunting, PW1 Rajeev Kumar who is the then Forester along with the deceased Devadas, Forest Guard proceeded to conduct search and find out the hunter Mammad, the appellant herein. On reaching a place called Thamarakadu, on the mud road in between Josco Estate and the estate of Sri.K. Mammed Kutty, the appellant recognized PW1 and the deceased with the help of torch light. Mammad pointed the gun towards both PW1 and the deceased. PW1
Crl.Appeal No.629/15
-:4:-
ordered the appellant to put down the gun and move away. The appellant by uttering the words “forest officers will not be spared” aimed the gun at them and fired at them and it hit the Forest Guard Devadas causing serious injuries on his both thighs. PW1 suddenly followed the appellant and caught hold of him. The appellant intimidated PW1 by poking a knife at his stomach by saying that he would stab PW1 to death. The appellant managed to get released from the hands of PW1 and he ran away. Deceased was taken to hospital and he succumbed to injuries after one week.
Court came to the conclusion that the following facts were proved by the prosecution:-
(i) That the accused in this case was unable to properly
account for his presence with MO1 gun at the place of
Crl.Appeal No.629/15
-:5:-
offence at the odd hour.
ii) That the forest guard Devadas and PW1 forester were on official duty inspecting the forest area at Kolamala from 10 p.m, on receiving secret information by 9.30 p.m. on 24.3.2010 that the accused Mammad had entered the forest for hunting.
iii) That the accused with the knowledge that by his act he is likely to cause the death of the persons (the forest guard Devadas and forester PW1 who were on official duty), whom he could identify in the torch light in his hands on the road in the boundary of Josco Estate near to Ruby Crusher on 25/3/2010 at 1.00 hrs, intentionally fired at them consequent to which the gun shot hit the forest guard Devadas on his both thighs due to which he fell down with grievous injuries to which he succumbed at the hospital on ¾/2010.
iv) That the death of the injured forest guard was due to complications of shot gun injury sustained to both Groins involving major blood vessel (Acute Respiratory Distress Syndrome) which is also known as shock lung injury or acute lung injury and is a direct result of shock
Crl.Appeal No.629/15
-:6:-
due to severe blood loss which can occur after 30 minutes following hypo volumic shock due to blood loss as seen deposed by PW15.
v) That the accused had intentionally intimidated the forester PW1 who was on official duty by holding the tip of the MO 8 knife at his stomach and demanding his release failing which he would be stabbed to death, due to which PW1 was forced to release the accused from his hold and the accused escaped into the darkness.
vi) That the accused has intentionally misused the MO1 gun contrary to the stipulations for its use which are expressly stated in Ext.P9 licence issued to him. vii) That the accused had intentionally forced PW1 to
release his hold on the accused after he had misused the MO1 gun which injured the forest guard Devadas and escaped into the darkness.
trial Judge in this appeal. We have to decide whether the trial Court is justified in arriving at the above conclusions and consequently in convicting the appellant.
Crl.Appeal No.629/15
-:7:-
follows:
PW1 is an occurrence witness. PW2 to PW5 deposed the circumstances after the alleged occurrence. PW6 is an attestor to Ext.P4 mahazar by which MO9 and MO10 T-shirt and lungi worn by the appellant were seized. PW7 is an attestor to Ext.P5 scene mahazar. MO1 to MO3, MO5 and MO6 were seized as per Ext.P5. PW8 is an attestor to Exts.P3 and P4 seizure mahazar prepared by PW41. He admitted his signature in them but he turned hostile to the prosecution. PW9 is an attestor to Ext.P6 mahazar prepared for the seizure of objects found on the person of the appellant at the time of his arrest. Ext.P17 is the arrest memo. PW23 prepared the said mahazar and PW25 identified the appellant at Eangapuzha bus stand. PW10 is an attestor to Ext.P7 inquest report prepared by PW41. PW11 is the uncle of the victim. PW12 is the nephew of the deceased who deposed the evidence of dying declaration allegedly made by the victim to him. PW13 is an attestor to Ext.P8 search list for the seizure of Ext.P9 license of the appellant for MO1 gun. The said gun was seized from the house of the son of the appellant after preparing Ext.P40 search memo. PW13 turned hostile to the prosecution. PW14 is another attestor to Ext.P8 search list as per which Ext.P9 license was
Crl.Appeal No.629/15
-:8:-
seized by PW41. PW15 conducted post-mortem examination on the corpse of the victim and issued Ext.P10 report. PW16 is an attestor to Ext.P12 seizure mahazar. He admitted his signature in Ext.P12. But he turned hostile to the prosecution. PW17 is another attestor to Ext.P12. PW18 is the Range Officer who was informed by PW1 that Devadas got injured due to gun shot by the appellant. He reached MCH immediately. Thereafter, on 26/03/2010 when he met Devadas, it is his version that Devadas had told him that the appellant fired at him. PW19 is an attestor to Ext.P11 seizure mahazar prepared by PW41 at the time of seizing MO11 X-ray of the victim. PW20 is also an attestor to Ext.P11 mahazar. He guarded the scene of occurrence as per the instruction of PW23 from 02.00 a.m. on the date of incident. MO12 and MO13 were taken to FSL, Thiruvananthapuram by PW20. PW21 is the retired Deputy Collector who had sold his gun to the appellant/accused as per the order of the District Collector dated 04/12/2007. He identified MO1 as the gun sold by him to the appellant. PW22 is the A.S.I. of Police who on receipt of information about the incident by 01.30 a.m., alerted PW23 to reach the spot. PW23 is the A.S.I. of Police who, on intimation by PW22, reached the spot at 02.00 a.m. and did the scene guard.
Crl.Appeal No.629/15
-:9:-
With the help of PW25, he arrested the appellant from Eangapuzha bus stand as per Ext.P17 arrest memo. PW24 is the photographer who had taken MO14 series photos of the corpse of Devadas which were seized as per Ext.P18 seizure mahazar. PW25 assisted PW23 in arresting the appellant. PW26 and PW27 are attestors to Ext.P19 mahazar prepared for the seizure of MO1 torch and MO7 series uniform of Devadas. PW28 is the Forest Guard. PW1 alerted him regarding firing incident. PW29 is another guard placed on duty by PW23 at the place of occurrence. PW30 is the Range Officer who produced S.O. Register and weekly diary of PW1 before PW41 for inspection. As per Ext.P21 kaichit, the said documents were taken back. Ext.P20 is the mahazar for the seizure of register. The extract of S.O. Register at pages 45 and 145 were marked as Ext.P22 series. It reveals the transfer and posting of Forest Guard in page no.45 and Rajiv Kumar is the Forester in page 145. He also produced Ext.P23 report dated 01/12/2014 issued by PW45. It shows that on 15/11/2013 at 10.00 a.m., in a rioting, mischief and fire by a mob consisting of about 200 people, weekly diary of Forester Rajiv Kumar and Forest Guard Devadas were destroyed. Ext.P23(a) having 20 pages is the original weekly diary of PW1 recovered subsequently
Crl.Appeal No.629/15
-:10:-
and the same was produced with Ext.P23 report. Through PW31, Ext.P25(a) Forest Movement Register of Puduppady Section was marked. PW32 is the arms and ammunition dealer at Ernakulam. Ext.P27 is the extract of page 125 of the sales register produced by him before Court. Ext.P26 is the kaichit and Ext.P26(a) is the seizure mahazar of the said sale register. PW33 is the writer at Police Station who verified Ext.P28 extract of the Arms Register of Thamarassery Police Station. Ext.P9 is the license. PW34 is the mother of the deceased. PW35 is the then Grama Panchayath Secretary who issued Ext.P29 series ownership certificate which shows that ownership of house No.13/448(A) is in the name of K.K.Mammad and house No.13/531(C) is in the name of Souda Beevi. PW36 is the clerk of the said Panchayath who prepared Ext.P29 series. PW37 is the Village Assistant who prepared Ext.P30 sketch plan. PW38 is the then Additional District Magistrate, Kozhikode. He deposed that Ext.P9 license with No.1374/KDE was issued to K.K.Mammad, Koottalil, Puduppadi P.O. PW39 recorded Ext.P1 FIS of PW1 and registered Ext.P2 FIR. PW40, PW46 and PW48 are Doctors who examined and treated Devadas in Medical College Hospital during the relevant period. PW41 to PW44 are the Circle Inspectors of Police who
Crl.Appeal No.629/15
-:11:-
investigated into the matter at various stages. PW47 is the ballistic expert who analyzed MO1 gun, MO2 cartridge case, MO7 series uniform dress of the deceased, MO9 T-shirt and MO10 lungi of the accused. DW1 was examined by the defence. He is the then Tahsildar of Thamarassery. Exts.D1 and D2 were marked through him.
Crl.Appeal No.629/15
-:12:-
he noted the following injuries in Ext.P31:
2) Another wound which is lacerated 1x1 cm. Circular with margins over the RT. Inner aspect of the thigh just below the inguinal ligament. No active bleeding was found from this wound.”
The patient was subjected to an emergency surgery and he was
in a shock. PW46 Dr.Mohan was the then Unit Chief of the Surgery Department. He stated that Devadas was admitted as I.P No.14668 and the case sheet is marked as Ext.X1. PW48 Dr.Kuriakose is the then Head of the Department of CardioVascular and Thoracic Surgery at Medical College Hospital, Kozhikode. He conducted surgery on Devadas. Even after the surgery, the condition of the patient worsened and he was shifted to ventilator. His kidney and liver function deteriorated and he was subjected to dialysis. On 30/03/2010, his lung was badly infiltrated and on 03/04/2010, he succumbed to the injuries. PW15 Dr.Sujith Sreenivas conducted autopsy on the dead body of the victim. Ext.P10 is the post-mortem certificate. The following injuries were deposed to be found in the corpse of the victim:
Crl.Appeal No.629/15
-:13:-
“1. Sutured surgical wound 18cm long over the inner aspect of right thigh extending upwards as a curved incision up to a point 2 cm below the mid inguinal point with convexity towards the root of penis. The skin of the wound margins appeared sloughed and necrosed on either side along the upper half of the incision. The sutures were opened. The underlying soft tissues were densely infiltrated with blood and blood clots seen within the soft tissues. The wound extended as a track along the inner aspect of thigh backwards horizontally towards the coccyx (horizontally directed-not upwards or downwards). The track extended from the curved upper portion of the surgical wound where the skin margins showed necrosis approximately 82 cm above heel (4 cm below root of scrotum). The track was 11 cm long with soft tissues and muscles around dark blackish and necrosed. Two pellets were recovered from the depth of the wound under the guidance of x-ray taken. (Aluminum coloured pellets measuring 1x1x0.8 cm and 0.8x0.7x0.3 cm). A dark stone like hard object measuring 1x0.8x0.8 cm seen within the muscles of upper thigh region. There was no evidence of wound infection. The wound margin at the site of skin necrosis excised along with dark blackish and necrosed underlying muscles and preserved in spirit for ballistic studies.
2. Sutured surgical wound 15 cm long vertically placed on left inguinal region at mid inguinal point extending 7 cm above the groin and 8 cm below the groin. The sutures were opened. The wound margins showed laceration like irregularity of either edges over the middle portion of the external injury (Approximately at a level 87 cm above the heel). The deeper soft tissues were
Crl.Appeal No.629/15
-:14:-
dissected. Surgical haemostatic ligatures seen at the depth of the wound. A surgical venous graft seen anastomosing the deeper veins of thigh. The soft tissues of the thigh was densely infiltrated with blood with soft tissue damage and necrosis at places. Two pellets recovered from left pubic region and left pelvic region 1x1x0.8 cm and 0.3x0.3x0.4 cm respectively under the guidance of x-ray taken. There was no evidence of wound infection. The wound margin at the irregular portion excised along with underlying soft tissues and preserved in spirit for ballistic studies.
3. Abrasion with superficial area of skin loss over 1.5x1.5 cm on the front of right thigh 10 cm below the midinguinal point (? Wad injury).
4. Two vertical surgical sutures on the front of lower abdomen 2 cm below umbilicus. There was a transverse surgical incision 0.8 cm long on the front of lower abdomen 4 cm below umbilicus (?Therapeutic dialysis site).
5. Incised wound 2 cm long gaping fat deep transversely placed on the front of left hand over the thenar prominence. The outer end was 1.5 cm inner to the root of thumb. The injury was 4 cm below the wrist with the outer half deeper than the inner half.
6. Superficial skin slippage over an area (2.5x0.7 cm) on the front of left elbow (Anoxic bullae).
7. Superficial area of skin slippage (1.2x1 cm) on the inner aspect of right thigh 21 cm above the inner aspect of knee (Anoxic bullae)
8. Multiple areas of skin slippage over 9x4 cm on the outer aspect of right thigh at its middle third (Anoxic bullae).
Crl.Appeal No.629/15
-:15:-
9. Surgical incised wound 14 cm long sutured, vertically placed on the inner aspect of right leg, lower end just in front of the medial malleolus (Donor site of vein graft). The ends of cut vein found sutured at the depth of wound.
10. Avulsed laceration 1.5x1.5 cm on the under aspect of right second toe of right foot. The injury was based towards the lateral aspect.
11. Abrasion 2x1 cm on the outer aspect of right 2nd toe of right foot towards the tip.
12. Avulsion of nail of 3rd toe of right foot with surrounding abrasion over 1.5x1.5 cm with fracture of the distal phalanx.
13. Fracture of distal phalanx of 2nd toe of right foot. 14. Scab formed abrasion 2x0.3 cm on the outer aspect of left elbow”.
According to PW15, the victim died due to complications of gun
shot injury sustained to both groins involving major blood vessel (Acute Respiratory Distress Syndrome or ARDS). PW15 further stated that ARDS is a clinical presentation of diffuse alveolar damage evident during microscopic study of the lung and is also known as shock lung or acute lung injury and is a direct result of shock due to severe blood loss. It can present after 30 minutes following hypo volumic shock following blood loss. The rapidity of
blood loss and the period of bleeding influences the onset of shock due to blood loss. ARDS can result in rapid onset of severe
Crl.Appeal No.629/15
-:16:-
life-threatening respiratory insufficiency and multi-organ failure. PW48 in his evidence stated that his main aim was to control the bleeding to save the life of the patient who was in a state of shock from the time he was seen in casualty and hence he could not recover any foreign body or pellets in his exploration. PW48 was cross examined in detail. But nothing was elicited from him to indicate that the patient died due to the infection caused by the non-removal of pellets from his thighs. PW48 deposed that there is no vital organ which can be damaged by the pellets except the blood vessels which may if injured would result in fatal bleeding. He corrected the damaged large blood vessel through surgical intervention and major bleeding was controlled. After the first exploration, he had not explored the wound for pellets. During cross-examination, he deposed that the patient was on ventilator when he saw him. His cardiac condition was unstable and he was not in a position to speak anything. Evidence of PW48 shows that ARDS occurred after the surgery i.e., by 30/03/2010 and the patient become severely breathless. Clinical diagnosis at that time was ARDS and the patient was moving to multi-organ failure. He deposed that severe infection can cause ARDS but denied the suggestion that patient was infected due to non-
Crl.Appeal No.629/15
-:17:-
removal of pellets. In page no.2 of Ext.X1, it is noted that there was phlegm accumulation with pus. PW48 explained that it might be due to infection on 03/04/2010 while he was in care of the surgical unit. The cause of infection is also deposed by him. According to him, mechanical ventilation needs incubation of the air way and that procedure has got complications of retained secretions in the lungs which may lead to respiratory infection. To prevent the same, measures were taken in all patients on mechanical ventilation. Tracheostomy was done to assist proper care of the mutilation in a patient who requires prolonged ventilatory support. MO12 series pellets were recovered from the body at the time of post-mortem. But PW40 and PW48 categorically deposed that there was no sign of infection due to the presence of pellets in the thigh. Post-mortem reveals that there was no sign of infection in injury nos.1 and 2 which are the sites of recovery of pellets and stone. PW15 deposed that histopathology examination of the lung revealed only alveolar damage and there was no evidence of infection. He denied the suggestion that cellulitis is soft tissue infection. He deposed that it is due to inflammation and not due to infection. Though PW15 could not state as to when ARDS began, PW48 in his evidence deposed that
Crl.Appeal No.629/15
-:18:-
he could attend the victim only after 6 hours of his admission and at that time there was severe bleeding which was arrested by surgery. Therefore, the volume of blood loss occurred from 01.00 a.m. when patient sustained injuries till the arrest of bleeding at 07.30 a.m would necessarily result in ARDS followed by multiple organ failure. PW46 deposed that all supportive care was extended to the patient. He was attended by nephrology consultants, anesthesia consultants, ENT and Cardio-Thoracic consultants. He was extubated after two days. It is the version of PW46 that though the patient showed some improvement initially, he developed renal failure and ARDS. He was again put on ventilator on 30/03/2010. Patient developed renal failure and respiratory distress. Patient underwent emergency peritoneal dialysis on 03/04/2010. On the same day, an emergency tracheotomy was done to improve his respiratory function. Evidence of PW46 would further show that more than 30 units of blood was infused into the patient. The best possible treatment was given to the victim by a team of most senior Doctors in the MCH, Kozhikode but the patient died at 10.50 p.m. on 03/04/2010. In our considered view, the case of the defence that the death of Devadas happened due to infection caused by the
Crl.Appeal No.629/15
-:19:-
non-removal of pellets and stone from the wound and also that of negligence of Doctors are only to be rejected in the light of medical evidence rendered by PW40, PW46, PW48 and PW15. Two points are answered in the above discussion. One is that death of Devadas was a homicide. Second point is that the death resulted from complications that arose out of gun shot injuries.
Crl.Appeal No.629/15
-:20:-
by 09.30 p.m. Forest Guard left with Range Officer to Mathotta for returning the exhibition articles back. PW1 and the deceased were taking food. At that time, a call came to the mobile phone of PW1. The information passed on to PW1 was that a person named Mammad who is a poacher is out for hunting with gun at Kolamala forest area. PW1 told the matter to Devadas and both of them proceeded to the place in the motor cycle of Devadas and as they reached near Ruby Crusher at Poolott, stopped the bike. They proceeded towards Kolamala area through road on foot. Both of them were in uniform. Since it was summer, they were wearing footwear. Both of them were having torch with them. They advanced by observing the area and reached the mud road near boundary of Josco Estate by 01.00 a.m. At that time, they saw the figure of a man about 15 metres away from them. The said person lighted the torch to the face of both of them and both of them lighted their torches also at the face of the man. Then they realized that the man standing there is poacher Mammad who is the accused standing in the Court. Suddenly, Mammad pointed the gun towards them. PW1 asked Mammad to drop the gun. Devadas also asked Mammad to put the gun down. Mammad did not put the gun down and he again pointed the gun
Crl.Appeal No.629/15
-:21:-
towards them. Since they were unarmed and out of fear, they asked him to drop the gun and run away. At that time, Mammad fired at them by uttering “ നനായയിനന്റെ മക്കനളെ ഫഫനാറസസ്റ്റ് കനാനരെ നവെറുനത വെയിടയില”. The said shot fell on Devadas. Devadas cried aloud “അഫയനാ” and fell down. PW1 ran to catch Mammad. Mammad turned and started running. During running, he jumped into the estate on the right side and the gun and torch were seen falling from his hands. PW1 caught hold of Mammad from the back by locking his hands. Then, Mammad took out a knife kept at his loin and placed at the abdomen of PW1 and threatened him saying “you son of a bitch, if you do not release your clutch over me, I will stab you”. A torch was there on the left hand of PW1. With the help of that light, he had seen the knife used to intimidate him. Due to fear of death, he released Mammad and Mammad ran into the dark. He came back calling “Devadasaa” and found Devadas in a pool of blood. Left thigh of Devadas was injured due to the gun shot and there was profuse bleeding. PW1 pressed on the wound using his right hand and took his mobile phone using his left hand and called Forest Convenor Damodaran Nair (PW2)
Crl.Appeal No.629/15
-:22:-
and informed the matter. He told that he would reach soon in a Jeep. PW1 also informed over phone Prakash who was a worker in Josco Estate and Prakash reached there. Soon, Lajumon and his neighbour Velayudhan reached in a bike. PW2 reached there in jeep. All of them took Devadas to the Jeep and they proceeded to Medical College area. PW1 asked Prakash to have an eye over there as the torch and gun used by Mammad fell there. Prakashan brought a cloth and the wound was tied. On their way to Medical College, PW1 informed the matter to Vijayakumar over phone and asked him to reach the place of occurrence. Also, PW1 informed Forest Guard Rejimon of Kanalad Section, Police Station and Range Office, Thamarassery. As they reached Koduvally, the jeep had a break down. The said Jeep belonged to Pareed of Pulot. An ambulance from MPC Hospital, Koduvally was arranged and Devadas was shifted to it. They reached casualty of Calicut Medical College. Doctors examined Devadas and shifted him to operation theatre. The uniform worn by Devadas was torn and handed over to PW1. PW1 came back. In the morning, by 07.30, PW1 reached Thamarassery Police Station and gave statement. PW1 had also shown the place of occurrence to police. From the place of occurrence, blood-stained chappal of left foot of Devadas
Crl.Appeal No.629/15
-:23:-
and blood-stained sand were seized by the police. Police also seized the gun and torch of the accused from the spot. On 26/03/2010, PW1 handed over the blood-stained uniform of Devadas to police. He deposed that he had identified the dress of the accused before police. It is his version that they knew for quite some years that Mammad was a habitual poacher. Alone he goes out for hunting. He was under constant surveillance by forest officials. Hence, Mammad was having grudge towards forest officials. The son of Mammad, Sri.Kunjahammad was residing near to Forest quarters at Chozhiode and Mammad used to visit his son there. According to PW1, he along with Devadas proceeded to the spot based on credible information about Mammad and Mammad fired at them with the intention of causing death. Devadas succumbed to injuries on 03/04/2010. It is his version that he went to Medical College hospital all days to visit Devadas but he could not meet him as Devadas was in ICU. Ext.P1 is the First Information Statement (for short 'FIS') given by him to police. Ext.P2 is the First Information Report (for short 'FIR') registered based on his statement. He also identified MO1 gun of Mammad which was used for the commission of the offence. MO2 is the empty case taken from the gun. MO3 is the
Crl.Appeal No.629/15
-:24:-
chappal of Devadas. MO4 is the torch in possession of Devadas. MO5 is the blood-stained sand seized from the place of occurrence. MO6 is the torch found at the hands of Mammad. MO7 is the uniform of the deceased. MO8 is the knife used by Mammad to intimidate PW1. MO9 is the T-shirt and MO10 is the lungi worn by Mammad at the time of incident.
Crl.Appeal No.629/15
-:25:-
suffered the injuries due to PW1. PW1 stated that he had told to the Doctor that Mammad the poacher fired. He stated further that he took Devadas to MCH to save him and he avoided MPC hospital since there was no casualty in MPC hospital and Doctors would not be available at that time there. He also stated that his statement was lastly recorded by the police on 26th and Devadas died after that. By the time he went to meet Devadas in hospital, Devadas was not in a position to speak. A suggestion was put to PW1 that they had not gone to the place of occurrence between 10.00 p.m and 01.00 a.m. instead they went to a house. PW1 denied the said suggestion. He agreed with the suggestion that he had seen Mammad about 15 metres away. He admitted that Mammad did not inflict injuries on PW1 using knife though he had opportunity to do so. He denied the suggestion that he had examined the place of occurrence before police reaching the place of occurrence. He stated that he ran towards Mammad with a view to prevent him from loading the gun again and shot at him and also because of his anger towards him as he fired at Devadas, his colleague. MO4 torch of PW1 is a three battery torch and it is having bright LED in it. He denied the suggestion that the appellant had seen PW1 coming from the house of Vanaja by
Crl.Appeal No.629/15
-:26:-
keeping Devadas near the bike. He also denied the suggestion that the appellant asked PW1 in rhetoric fashion, “is this the duty of forest officers?” and because of the same PW1 got provoked and then chased the appellant stating that he would implicate appellant in a case. He again denied the suggestion that he tried to take the gun from the appellant thinking that it was not a licensed one and during that process, gun fired which caused injuries to Devadas. He denied the suggestion that gun shot was caused by him to Devadas.
Crl.Appeal No.629/15
-:27:-
Guard Devadas lying in the road in a pool of blood. At that time, PW1 Forester, his son Lajumon, Velayudhan and Prakashan were there. All of them took Devadas to the jeep. Himself, PW1 and PW3 proceeded with Devadas to Medical College Hospital, Kozhikode. On the way, jeep had some problem and hence they arranged an ambulance of MPC hospital and took Devadas to MCH casualty. Doctors examined Devadas and shifted him to operation theatre. He did not tell details to Doctors. PW1 told details to Doctors. PW2 asked PW1 about the incident. It is his version that PW1 told him that they received secret information that Mammad was going out for hunting on that night. Accordingly, PW1 and the deceased proceeded to Kolamala forest through PMP Estate road. On coming back, they saw a shade in the road situated near forest. As torch was lighted to that direction, they understood that it was Mammad. They asked him to flee after leaving the gun. By that time, Mammad fired and it hit on Devadas. Mammad was chased and was caught. But he pointed his knife on the abdomen of PW1 and threatened him that he would be killed unless he leave Mammad. PW2 identified accused in Court. He stated that he knows Mammad from childhood and he is a poacher. During cross-examination, he
Crl.Appeal No.629/15
-:28:-
stated that PW1 had left the Medical College hospital before PW2 left the hospital. He denied the suggestion that he is deposing falsely to implicate the appellant herein.
Crl.Appeal No.629/15
-:29:-
working at Josco Estate at Kolamala. On 25/03/2010 at about 01.00 a.m., as he was sleeping in the godown of the estate, PW1 Rajeev Kumar who is known to him, contacted him over phone and told him that a person by name Mammad had shot at Devadas, the Forest Guard and he is lying injured on the mud road near the border of estate. He also asked PW4 to reach the spot soon. He reached the spot with a torch and saw Devadas lying there with injuries below his hip. PW1 was pressing on the injury of Devadas and he was found worried. He asked PW1 what had happened. PW1 told him that the appellant herein fired at Devadasan as he was about to be caught. During their conversation, PW3 and PW5 reached the spot. PW1 asked PW4 to bring a cloth. Accordingly, PW4 went to his room and brought a cloth and it was tied around the injury. By that time, PW2 reached there with the jeep and they took Devadas to the hospital in that jeep. PW1 told PW4 to pay attention to the torch and gun which fell at the place of occurrence from the hands of the accused/appellant. So, PW4 searched for them and found them near the coconut tree. They remained there for sometime. CW40 Vijayakumar, Forest Guard reached the spot and then PW4 went to his room. PW5 also deposed in tune with the version of PW2 to
Crl.Appeal No.629/15
-:30:-
PW4.
Crl.Appeal No.629/15
-:31:-
by Devadas with him as a secret for two months in spite of knowing that it was an important information. He stated further that he had no complaints or allegation that there was foul-play by police and forest official in connection with this case.
Crl.Appeal No.629/15
-:32:-
dated 25/03/2010 for the discovery of dresses and pellets. Ext.P39 is the confession statement which led to the recovery of gun license. Ext.P43 is the chemical analysis report prepared by PW47 exhibiting ballistic evidence. That apart, oral evidence of PW47, PW32, PW33 and PW38 are relevant on this aspect.
Crl.Appeal No.629/15
-:33:-
Having regard to the aforesaid evidence led by the prosecution, there is absolutely no material to take a different view. Under such circumstances, the trial Court was justified in finding the accused guilty and convicting him. Only a lesser sentence had been granted by the trial Court and therefore no interference is required to the sentence as well. Appeal is, hence, dismissed.
Sd/A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR Rp True Copy JUDGE
PS to Judge
3 issues framed by the court
Whether the death of the deceased was a homicide caused by complications of gun shot injuries and not by infection or medical negligence?
Whether the prosecution proved that the appellant caused the fatal gun shot injury by firing from MO1 gun?
Whether the trial court was justified in convicting the appellant and whether the sentence warrants interference?
4 provisions across 2 enactments
K.K.MAMMAD
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
