Partly allowed

Villy K.Antony v. State of Kerala

Kerala HC4 Jun 2020CRL.A/445/2016

Case brief

AI extract

What is this about?

The High Court examined an appeal against a murder conviction. While accepting the prosecution's evidence of assault causing fatal injuries, the Court held that the accused lacked the specific intent to kill. The conviction was held to be culpable homicide under Section 304 IPC Part II instead.

What did the court decide?

Conviction altered from murder to culpable homicide not amounting to murder under Section 304 IPC Part II; sentence reduced to five years rigorous imprisonment.

Villy K.Antony Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

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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.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942

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CRL.A.No.445 OF 2016

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AGAINST THE ORDER IN CP 16/2014 OF JUDL. FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR (TEMPORARY)

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AGAINST THE JUDGMENT IN SC 613/2014 DATED 29-02-2016 OF ADDITIONAL SESSIONS COURT - II, NORTH PARAVUR.

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CRIME NO.302/2013 OF VARAPPUZHA POLICE STATION , ERNAKULAM.

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APPELLANT/IST ACCUSED :

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VILLY K.ANTONY, S/O.ANTONY, KANNAMPARAMBIL HOUSE, KOTHAD KARA, KADAMAKUDY VILLAGE, NORTH PARAVUR.

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BY ADV. SRI.P.T.JOSE.

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RESPONDENT/COMPLAINAT :

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STATE OF KERALA, REPRESENTED BY C.I. OF POLICE,CENTRAL POLICE STATION, ERNAKULAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.445 of 2016 2

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A.HARIPRASAD & N.ANIL KUMAR, J J.

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Crl.Appeal No.445 of 2016

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Dated this the 4th day of June, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Appellant is the sole accused in Sessions Case No.613 of 2014

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before the Court of Additional Sessions Judge – II, North Paravur. He was

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tried, convicted and sentenced for an offence under Section 302 of the

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Indian Penal Code, 1860 ( in short 'I.P.C').

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Prosecution case, as revealed from the charge framed by the

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trial court, is that on 16-03-2013, at about 6.00 pm, the accused entered

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the hall of their residential building with an intention to commit murder of

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his own father Antony and attacked him with a walking stick used by the

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deceased. In the attack, the victim suffered fatal blows on head, face and

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chest resulting in deep injuries to brain and internal organs in the chest. The

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Crl.Appeal No.445 of 2016 3

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accused is alleged to be guilty of an offence of murder defined under Section

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300 I.P.C.

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In order to substantiate the prosecution case, 19 witnesses were

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examined and 19 documents were exhibited. DW1 was examined on the

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defence side.

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Heard the learned counsel for the appellant and the learned

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Senior Public Prosecutor.

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The incident happened at about 6.00 pm on 16-03-2013 in the

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residential house of the accused and deceased, who are the son and father

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respectively. PW1 is the informant. He is the nephew of the deceased. He is

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not a witness to the incident. He informed the police that Antony died on 20-03-2013 from the Medical College Hospital, Kottayam. In Ext.P1 FIS, it is

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mentioned by PW1 that he had only a hearsay information about the assault

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meted out by the accused on the deceased. However, the court below did not

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rely on the testimony of PW1 to find guilt of the accused.

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Crl.Appeal No.445 of 2016 4

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PW2 is a neighbour of the deceased and he is a witness to Ext.P2

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inquest report. PW3 is yet another witness to Ext.P2 inquest report.

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PW4 did not support the prosecution case and she did not speak

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anything against the accused.

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PW5 is the mother of the accused and wife of the deceased.

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Prosecution wanted this witness to speak about the incident, which she refused. According to her chief examination, she found the deceased lying on ground with bleeding injuries on face, apparently sustained by a fall on the door step. Records would show that deceased Antony was laid up due to paralytic stroke and he used MO1walking stick on account of his illness.

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PW5 asserted that her husband sustained injuries on account of a fall. In

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other words, she did not speak anything against the accused. However, learned Public Prosecutor pointed out relying on Ext.P4 wound certificate

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issued by PW9, doctor, who examined Antony from General Hospital,

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Ernakulam, that PW5 had intimated him that the deceased sustained injuries

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Crl.Appeal No.445 of 2016 5

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noted on Ext.P4 on account of an assault by the accused. This appears to be

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the first statement relating to the injuries sustained by the deceased.

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However, PW5 did not support the averments in Ext.P4.

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PW6 is a neighbour. He narrated the incident fully supporting

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the prosecution version. According to his chief examination, on 16-03-2013 after 5.00 pm, he heard a loud cry from the house of the deceased. He went there running. At that time, he found the accused beating

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his father with MO1 stick. He further deposed that the accused incessantly beat the deceased on various parts of body. When he tried to meddle with the matter, accused asked him to go out as it was their family issue. PW6 further deposed that PW5 was also present at the time of incident. However, PW5 did not say so. PW6 further stated that after beating the deceased, the

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accused stamped him many times. Thereafter, Antony, along with PW5 and one more lady, was removed to General Hospital, Ernakulam and then to Medical College Hospital, Kottayam. He described the shape of MO1 and he

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Crl.Appeal No.445 of 2016 6

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identified it from the box.

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In cross-examination, it was brought out that PW6 was a piling

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worker. Normally he used to return home by 5.00 pm and occasionally he

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would come early, if he finished his work. His house is about 40 metres away from the house of the deceased. He deposed in cross-examination that he arranged an auto rickshaw for carrying deceased Antony to the hospital. On the next day, he went to the hospital to see Antony. In crossexamination, it was suggested that PW6 demanded money from the accused to change his previous statement, for which the defence was not prepared. In other words, it is pointed out that PW6 deposed against the accused for

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not paying the demanded amount. This suggestion is strongly denied by him. It is seen that the lower court has placed reliance on the testimony of this witness to find guilt of the accused. We find no reason to discard the evidence of PW6 despite tough cross-examination done on him.

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PW7 is the eldest son of the deceased. Defence has a case that

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Crl.Appeal No.445 of 2016 7

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PW6 deposed against the accused on the instigation of PW7. It has come out

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that there was a property dispute between the accused and PW7. However,

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we do not attach much importance to his deposition since he was not

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present at the place of occurrence at material time.

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PW8 is a witness to Ext.P3 scene mahazar.

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Testimony of PW9 is important. He treated the deceased from

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General Hospital, Ernakulam. At about 7.50 pm, on 16-03-2013, he

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examined the patient and the multiple injuries noted are as follows :

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“1. Wide abrasion right arm 6cm x 3cm.

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Tip of index finger (Rt) amputed.

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Pain swelling left hand and right hand.

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Deep cut on right hand fingers.

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Multiple abrasion all over body.

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Open comminuted fracture left ring finger, middle finger, index finger and tip of fingers also.

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Lacerated wound right first web space 1.5 x 1

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Crl.Appeal No.445 of 2016 8

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Lacerated wound 2 x 0.5 cm 3rd web space.

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Lacerated wound on right dorsum of middle finger.

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Loss of nail of right little finger.

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Fracture neck of right fibula, right foot ankle, fibula lower end and ankle.”

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Ext.P4 is the wound certificate. It has come out in evidence that

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the deceased had suffered poly trauma old ceribro vascular accident (CVA).

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Considering the condition of the patient, he was referred to Medical College

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Hospital, Kottayam. It is clearly mentioned by PW9 that CVA noted by him in

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Ext.P4 was not due to the injury noted in Ext.P4 indicating that it could have

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been an old case of CVA. Injury noted by PW9 on Ext.P4 could be caused by

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MO1.

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Learned defence counsel argued that injuries noted in Ext.P4 do

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not tally with the injuries noted in Ext.P7 post-mortem certificate issued by

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PW15. That aspect we will consider at the time of discussing the evidence of

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PW15.

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Crl.Appeal No.445 of 2016 9

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PW10 is the Doctor, who examined and treated the deceased

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from Medical College Hospital, Kottayam. It is deposed to by PW10 that the

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victim succumbed to injuries on 20-03-2013 at 10.35 pm. The clinical diagnosis noted by PW10 reads as follows :

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“1. Poly trauma/alleged assault acute to sub acute infarct in the right internal carotid artery territory.

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Fracture anterior wall of right maxillory sinus.

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Fracture right fibula and it is a past history of old CVA.”

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PW10 issued Ext.P5. In chief examination, PW10 deposed thus :

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“ Poly trauma means multiple serious injuries. I have not written all the injuries in Ext.P5 since there was many injuries noted by Orthopaedics in case sheet. It is possible to cause the injury sustained to the patient by wooden stick like MO1. But infarct sustained in ICA torriting is an injury in brain can be caused by blunt injury producing a atheromatous plaque dislodgment

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Crl.Appeal No.445 of 2016 10

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or it can be explained by hypovolaemia due to blood loss which can trigger a thrombus formation in an old age person with narrow carotid artery. While I am thinking that the patient had past history of cerebro vascular accident six months back. The patient was unconscious entire period and had left hemiplegia. That is why I have treated the patient even though I am a physician. All injuries together are fatal. If a person had carotid artery infarct with loss of conscious the prognosis is very bad. Usually it is fatal.”

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In cross-examination, PW10 deposed that the patient was

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recovering from CVA and walking with a support. Infact, the support was MO1 stick. It is brought out in cross-examination that the recent CT scan

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showed acute infarct was another episode and the triggering factor could be the assault.

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Now, we shall examine the testimony of PW15. PW15

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conducted autopsy on the body of the deceased on 21-03-2013. The post-

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mortem findings are as follows :

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“1. Lacerated wound 2.5 x 0.5 x 0.4 cm transverse on the right cheek. 1.4 cm below the eyelid and 1.5 cm outer to bridge of nose with an abrasion 1 x 0.1 cm, transverse situated 0.3 cm below it. On dissection, right cheek bone was found fractured. There was a thin film of sub-arachnoid haemorrhage on the right cerebral hemisphere. The brain showed features of raised intracranial tension.

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Abraded contusion 22 x 4 cm, oblique on outer aspect of right arm and elbow, its upper outer end 16 cm below tip of shoulder.

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Sutured lacerated wound, 9 cm oblique across right palm and the first web. Its lower front and 4 cm below ball of thumb and upper back end 7 cm below outer end of the wrist.

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Infected sutured lacerated wound 3.5 cm, oblique on back of root of right ring finger and adjacent inner web space with fracture of proximal segment of the right finger.

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Crl.Appeal No.445 of 2016 12

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Sutured lacerated wound 1.2 cm on back of the right little finger with loss of the nail.

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Sutured lacerated wound with a dark discolouration, 1.5 cm on right index finger, 6 cm below its root, the rest portion of the finger distal to it was missing.

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Sutured lacerated wound 1.5 cm on the back of root of right middle finger.

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Contusion 19 x 8 cm bone deep, vertical on outer aspect of right thigh, knee and adjoining part of the leg, 44 cm below top of hip bone. On dissection, the muscles, soft tissues and vessels underneath were found crushed with a haematoma formation and upper end of fibula was found fracture separated.

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Multiple small abrasions varying from 0.5 x 0.3 cm x 1.5 x1 cm on front of right leg 3 cm below knee.

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Sutured lacerated wound, 1.5 cm on right middle toe 2.5 cm below its root, the rest of which was

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Crl.Appeal No.445 of 2016 13

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missing.

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Multiple abrasions over an area of 9 x 3 cm on front of left leg 16 cm below knee.

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Abraded contusion 20 x 15 cm, muscle deep on front and adjoining inner aspect of left thigh and knee, 39 cm below top of hip bone. On dissection, the muscles, soft tissues and vessels were found crushed with a haematoma formation.

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Abraded contusion 5 x 0.6 cm, oblique on the right side of back of chest, its upper outer and 6 cm below top of shoulder and 16 cm outer to midline.

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Abraded contusion 6 x 3 cm, oblique on top of left shoulder 3 cm inner to its tip.

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Fracture Vth, VIth and VIIth ribs on right side at their angle to produce contusion of the lung beneath.

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Fracture IVth, Vth, VIth, VIIth and VIIIth ribs on left side at their angle to produce contusions of the left lung. The left chest cavity contained 100

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Crl.Appeal No.445 of 2016 14

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ml of brownish fluid. ”

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It is mentioned in Ext.P7 post-mortem certificate that brain of

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the deceased showed a diffused softening and brownish yellow colouration.

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According to PW15, the cause of death was due to the injuries sustained by

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the deceased to his chest and head. In cross-examination, he deposed that

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the injuries on head and chest are not noted in Ext.P4. As contended by the learned defence counsel there is such an omission in Ext.P4. But, we cannot

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find fault with PW15 for mentioning the injuries in Ext.P7 and his deposition because merely for the omission of PW9 it could not be said that the deceased did not suffer any injury noted in Ext.P7. PW15 also deposed that the deceased was treated for CVA. It has been brought out in evidence

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from PW15 at the time of cross-examination that a thin film of subarachnoid haemorrhage on the right cerebral hemisphere could be regarded

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as a head injury and it was brownish in colour. It could be resulted from the

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blows on right cheek. These injuries correspond to the testimony of PW9

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Crl.Appeal No.445 of 2016 15

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and the mentioning in Ext.P4. This also justified the evidence given by PW6

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regarding the incessant beating allegedly given by the accused to the deceased.

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After discarding unnecessary evidence, we may refer to the

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testimony of PW17, who registered Ext.P1 First Information Statement (FIS) on 21-03-2013 as informed by PW1. It is pointed out by the learned counsel for the accused that there is inordinate delay of five days in registering FIS. It is also argued that no intimation was received by PW17 from General Hospital, Ernakulam. It is true that being a medico-legal case,

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it was an obligatory on the part of PW9 to issue an intimation to the Police

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station concerned. Mere omission on the part of PW9 or any other person cannot weaken the prosecution case that there was an attack on the victim.

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It has been clearly identified that the accused inflicted blows on the deceased resulting in the injuries noted on Ext.P4. It is true that neither

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PW17 nor PW18 took the matter very seriously until the victim died from

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Crl.Appeal No.445 of 2016 16

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Medical College Hospital, Kottayam on 20-03-2013.

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PW18 conducted major part of the investigation. He questioned

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material witnesses. He conducted inquest on the body of the deceased and prepared scene mahazar. PW18 deposed that after arresting the accused,

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MO1 was recovered on the basis of his confession under Section 27 of the

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Evidence Act which is proved by him. There is no serious challenge regarding recovery of MO1 at the instance of the accused. PW18 further

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deposed that the walking stick (MO1) was sent for chemical analysis along with other properties and Ext.P16 is the chemical analysis report. It would

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show that MO1 stick was having human blood on various parts justifying

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the testimony of PW6. Although it is pointed out by the defence counsel that

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the investigation was not proper, we find no reason to regard the investigation as faulty to an extent causing prejudice to the accused, entitling him an acquittal. PW19 completed the investigation and laid the

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charge sheet.

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Crl.Appeal No.445 of 2016 17

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On an over all analysis of the prosecution evidence and also the

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testimony of DW1, we find that there are enough materials brought in by the prosecution to show that the accused, as alleged by the prosecution, on 16-03-2013 at about 6.00 pm, beat his own father, the deceased, mercilessly by using MO1 stick.

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Then the question remaining to be considered is whether he is

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liable to be convicted for an offence of murder as defined in Section 300 IPC.

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Learned counsel for the accused contended that there is no legal

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justification for the trial court when it convicted the appellant for an offence of murder. It is argued on the defence side that the accused had no intention

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to kill his father. Even if we accept the sole testimony of PW6, it cannot be held that he beat his father many times with MO1 stick with an intention to kill him. It is true that the deceased was a patient suffering from CVA and

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the injuries sustained at the hands of the accused must have accelerated his

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death. Despite prompt medical treatment given to the victim, he could not be

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Crl.Appeal No.445 of 2016 18

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saved. On an evaluation of the testimony of PW6 and the medical records,

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we find no reason to hold that the accused had intended to murder his

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father. But the fact that the accused had knowledge that he was likely by his

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actions to cause death of the victim is evident because he beat the deceased

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many times on vital parts of the body by using MO1. On a consideration of

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the entire evidence, we are inclined to think that the accused is liable to be convicted for an offence of culpable homicide as defined in Section 299 IPC falling within the third limb of the Section. If we attribute knowledge to the accused that he was likely by such act to cause the death of the victim certainly he is liable to be punished under Section 304 II of IPC. The reasons

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stated by the trial court for finding him guilty of murder cannot be justified.

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Hence we alter the conviction and sentence as mentioned below :

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In the result, the appeal is partly allowed.

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The appellant/accused is found guilty of an offence of culpable

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homicide not amounting to murder falling within part II of Section 304 IPC.

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Crl.Appeal No.445 of 2016 19

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The appellant is sentenced to undergo rigorous imprisonment for a period of

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five years. Fine and default sentence imposed by the court below are kept

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intact without any modification. Appeal allowed to the above extent.

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All pending interlocutory application will stand closed.

A. HARIPRASAD,

JUDGE.

N.ANIL KUMAR, JUDGE

amk

Villy K.Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

Villy K.Antony 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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Case details

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