Prakash vs State Of Kerala

The first accused in S.C.No.280/2014 on the files of the Sessions Court-IV, Kottayam, assails judgment in the above case dated 10.03.2016, whereby the learned Sessions Judge found him guilty for the offences punishable under Sections 448 and 304 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short). The respondent herein is the State of Kerala represented by the learned Public Prosecutor.

Heard the learned counsel for the appellant/first accused and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the trial court.

The prosecution case is that accused Nos.1 and 2 hatched conspiracy to do away one Shaji and in pursuance of the said conspiracy, on 19.01.2011, both of them reached near the house of Shaji. Thereafter, the first accused came to the residence of Shaji, in the upstairs of the house owned by PW1 with nomenclature Moongakavu. Thereafter, he was brought down to the tar road in front of the house and was slapped on his left cheek forcefully. As a result, Shaji fell down on the tar road and he sustained serious head injuries, which resulted in his death. On this premise, the prosecution alleges commission of offences punishable under Sections 120B, 114, 449 and 302 r/w. Section 34 of IPC by the accused.

The learned Additional Sessions Judge framed charge for the said offences and proceed with the matter. During trial, PW1 to PW22 were examined and Exts.P1 to P19 were marked on the side of the prosecution. Apart from marking Ext.D1, contradiction, during examination of PW2, no other defence evidence was adduced.

On appreciation of evidence, the learned Sessions Judge found the first accused/appellant had committed offences punishable under Sections 448 and 304 of IPC and accordingly, convicted and sentenced him as under:

At the same time, the learned Sessions Judge acquitted the second accused for want of evidence.

The learned counsel for the appellant/first accused argued that, in this case, the prosecution mainly relied on the evidence of PW2, who is the wife of the deceased Shaji to establish commission of offences punishable under Sections 448 and 304 of IPC. According to him, the evidence of PW2 is not believable, since the same contains material omissions and contradictions. It is pointed out that the first accused, along with the second accused, reached the residence of the deceased Shaji and demanded money due to him. In that course, even if the evidence given by PW2 that the first accused slapped on the cheek of Shaji is believed, no other overt was done by the first accused. According to the learned counsel for the appellant/first accused, even though PW1, the owner of the house, was residing on the ground floor of the same building, the first floor of which was occupied by the family of the deceased, he did not witness the overt acts done by the first accused, though his evidence would suggest that the first accused met him and enquired about the residence of the deceased. It is pointed out that the injuries sustained to Shaji, as noted in Ext.P13 post-mortem certificate, which was tendered in evidence through PW19, were the outcome of a road accident, as admittedly stated by PW2 before the police marked as Ext.D1 contraction since she had denied the same. It is pointed out further that, the evidence of PW1 and PW2 in no way would suggest any serious injuries when the deceased was taken to the house of PW1, where he slept in the night before his hospitalization in the morning, and therefore, the injuries noticed in Ext.P13 post-mortem certificate might have been occurred due to some other reasons. According to the learned counsel for the appellant/first accused, the prosecution has the duty to prove the ingredients for the offences punishable under Section 304 as well as under Section 448 of IPC beyond reasonable doubts and in the instant case, the prosecution failed in this endeavour. Therefore, the learned Sessions Judge went wrong in finding that the first accused/appellant committed the offences punishable under Sections 448 and 304 of IPC. Accordingly, he pressed for interference in the verdict impugned and to acquit the appellant.

Whereas the learned Public Prosecutor strongly supported the case of the prosecution, relying on the evidence of PW1 and PW2 as well as the evidence of PW15 and PW19, along with Ext.P13 post-mortem certificate, on asserting that, as opined by the doctor, injury Nos.(2), (3), (4) and (6) could be caused by falling on the tar road and the injury No.(5) could be possible by slapping on the cheek. Therefore, the overt acts done by the first accused by slapping on the face of Shaji, after reaching his house at odd hours, would show the intention, or, atleast, the knowledge contemplated under Section 304 of IPC. Accordingly, the learned Public Prosecutor contended that the impugned verdict is liable to be confirmed.

Having considered the rival submissions, points arise for consideration are,

Whether the Additional Sessions Judge is right in holding that accused committed the offence punishable under Section 448 of IPC?

Whether the Additional Sessions Judge is right in holding that accused committed the offence punishable under Section 304 of IPC?

Whether the impugned verdict would require any interference by this Court.

The order to be passed.

In this case, the crucial eyewitness is PW2, who is none other than the wife of the deceased. She deposed that deceased Shaji is her husband and they jointly resided on the upstairs of the building owned by Ajikumar, who was examined as PW1. She deposed further that her husband was engaged in the sale of dry fish in Thengana and they were residing on rent in the said house, since house construction was going on during the period of occurrence. She also stated that she was familiar with the accused persons. According to her, the first accused, Prakash, was a nearby resident of the place where the construction of their new house was being carried out. She further deposed that she had familiarity with the first accused when he came to carry out the loading works. Her crucial version is that, at about 11.30 pm on 19.01.2011, the accused persons came to the residential house and the first accused knocked on the door. Then she opened the door and the first accused informed her that in order to tell some accounts, he wanted to meet Shaji. PW2 informed the first accused that Shaji was sleeping and he could not be awakened. However, the first accused entered into the house and awakened Shaji, and took him outside. She followed them to the road in front of the house. Then the first accused slapped Shaji on the cheek after abusing him. As a result of slapping, Shaji fell backward down, and she made noise. Sri.Basheer, the second accused, was standing there. When PW1 along with two persons came on a motor bike taken Shaji to the sit out of the house of PW1 and poured water on his face, then he made a humming sound. When they asked him whether he should be taken to the hospital, he had responded by gestures in the negative. Then Shaji was laid inside the house of PW1 to avoid further assault at the instance of the accused. On the next day morning, PW2 reached near Shaji and made request him to go to the hospital. Then he replied that he wanted to sleep more. Again, she reached near Shaji at about 8.30 am, and found that Shaji was breathing with sound. As she felt the breathing sound as unusual, she informed the same to PW1. Thereafter, Shaji was taken initially to Medical Mission Hospital, Thengana, then to St.Thomas Hospital, Chethipuzha, and thereafter to Medical College Hospital, Kottayam. Finally, he was taken to Indo American Hospital, Vaikom. However, on the way to the hospital, Shaji breathed his last. According to her, Prakash asked for money from Shaji to consume liquor and on denial of the same by Shaji and in this connection, there was quarrel between them on the previous night. She also deposed that she had witnessed the occurrence in the light available in the house of PW1 and the street light. During cross-examination of PW2, one contradiction regarding the cause of injury sustained on the head of Shaji due to fall from a scooter, as stated by PW2 to the police, got marked, as she denied the same by stating that one injury had sustained to Shaji prior to the occurrence when his head came into contact with log piece of the shop. It is true that, during cross-examination, PW2 stated that she did not notice any injuries on the date of occurrence. During further cross-examination, it was suggested that Shaji had sustained injuries by fall of one log piece on his head and the same was not treated in time, which resulted in his death. Even though the learned counsel for the first accused/appellant submitted that the evidence of PW2 is flooded with contractions and omissions, in fact, apart from Ext.D1, no serious omissions or contractions could be found in the evidence of PW2. Regarding Ext.D1 contradiction also, the same, in fact, is pertaining to an injury sustained prior to the date of occurrence and the same has no impact in particular.

Insofar as the occurrence is concerned, PW1, Ajikumar, also supported the prosecution case, though he did not witness the assault committed by the accused on Shaji. According to him, in between 11.00 and 11.30 pm on 19.01.2011, the accused persons came to his house and the first accused enquired about Shaji. Then he informed that Shaji was in the upstairs. He enquired about the urgency of meeting Shaji, suggesting that he could meet him in the morning. However, the accused replied that he wanted to meet Shaji urgently in the night. Accordingly, he had directed the first accused to go to the upstairs through the staircase behind the building and according to him, Prakash moved to the house of Shaji through the staircase and he also heard the sound of knocking the door. Thereafter, Shaji and his wife came out of the house and thereafter, he heard the cry of wife of Shaji (PW2) and he reached the place of occurrence. Thereafter, it was informed that Prakash had beaten Shaji on the road, and Shaji had fallen down. At that time, Mohanan and Anish, who was examined as PW3, reached there and moved Shaji to the sit out of his house. He did not see the accused thereafter. He also deposed in tune with the version of PW2 regarding the subsequent events. In this case, the overt act at the instance of the first accused is confined to slapping on the cheek of the deceased Shaji and consequential fall of Shaji on the tar road. In order to prove the cause of death, Dr.Sasikala, who conducted autopsy examination on the body of Shaji (the deceased), was examined as PW19, and Ext.P13 post-mortem report was tendered in evidence through her. She noted the following ante mortem injuries:

The evidence of PW19 is that “death was due to head injury. Injury No.(5) can be possible by slapping on that part of face. Injuries 2, 3, 4 and 6 can be caused by falling on tar road(Q). Possible”. In this case, the doctor deposed that injury No.(1) was a healing wound and the same might have been occurred three days prior to the post-mortem examination. On going through the injuries, injury Nos.(2), (4) and (6) the same are head injuries and according to her, the deceased died due to head injuries.

It is submitted by the learned counsel for the appellant/first accused that no injuries were stated by PW15, who issued Ext.P10 wound certificate when the deceased was examined prior to his hospitalization to the Medical College Hospital at 9.45 am on 20.01.2011. He further submitted that the history stated in Ext.P1 was “fall at home on the previous day” and the same is doubtful and the same is contrary to the prosecution case that Shaji fell on the tar road. Even though, during cross-examination, PW15 supported the prosecution case and issuance of Ext.P10, his evidence is that “since the patient is suspected to have head injuries, referred to MCH after first aid.” No questions were asked to PW15 regarding the history and other details. Therefore, the entry in Ext.P10, that fallen at home on the previous day, alone did not suffice to disbelieve the prosecution allegation, which was witnessed by PW1 and PW2, who supported the prosecution case without any ambiguity.

It is true that injury No.(1) was sustained prior to the occurrence and the same not stated by the doctor as fatal. Therefore, whether the said injury was sustained by falling from a scooter (as per Ext.D1 contradiction) or by any other mode has no relevance in the facts of the case. Here, injury Nos.2 to 14 are the injuries, stated by the doctor, as one caused about 24 hours and below 3 days prior to the post-mortem examination. In this case, no overt act was specifically spoken against the second accused and accordingly, the learned Sessions Judge acquitted the second accused and the said acquittal is not under challenge. The other witnesses, including the investigating officer, also supported the prosecution case.

Sri.Anish, who got examined as PW3, deposed that at about 11.45 p.m on 19.01.2011, he and his friend Mohanan were passing through the road in front of the house of PW1 on a motor cycle, where they found Shaji lying on the road. They also helped to take Shaji to the house of PW1. PW4, Sri.Vinod, the brother of PW1, deposed that in between 10.30 and 11 a.m, at the request of PW2, he took the victim to the Medical Mission Hospital, Thengana and St. Thomas Hospital, Chethipuzha. However, he came to know that Shaji died that night.

Sri.Santhosh, the attestor to Ext.P2 inquest report of the deceased, got examined as PW5. Sri. Abhilash, the attestor to Ext.P3 scene mahazar, got examined as PW6. PW7, Sri.Collins M.B, received the blood sample collected in post-mortem, which was handed over to the Sub Inspector of Thrikkodithanam police station, supported the prosecution case in this regard. PW8, Sri.Jamal V.M, was the attestor to Ext.P4 mahazar for handing over of the blood sample to the Sub Inspector. PW9 examined in this case is Sri.Sadanandan M.D, the attestor to Ext.P5, the modified mahazar for the scene of occurrence. PW10, Sri. Raju A.G, is the attestor to Ext.P6 mahazar for toddy shop No.56. PW12, Sri.Babu, is the autorickshaw driver in whose vehicle the accused persons came to the place of occurrence from Perumbanachi stand. The accused came to the toddy shop at first by 9 p.m, but did not obtain liquor there. Then they were travelled to the house of the first accused, but got down in front of the kiln on the side of the road leading to Punnakunnu, near the house of PW1. PW13, Sri.George, was the attestor to Ext.P8 mahazar for the autorickshaw of PW12. PW14, Sri.Lalappan, was examined to state that the accused came to his residence to inquire about the house of Shaji, but he turned hostile to the prosecution. The contradictory statement is marked as Ext.P9.

PW16, Dr.A.V. Joseph, the Casualty Medical Officer of St. Thomas Hospital, Chethippuzha, on 20.01.2011. deposed that he had examined the victim at 11.40 am and issued Ext.P11 treatment summary. He treated the victim in the casualty and ordered a C.T scan, which revealed intracerebral haemorrhage. As the victim’s condition was critical, he was referred to Medical College Hospital, Kottayam. PW17, Sri.Paul Joseph Lobo, the then Village Officer, prepared Ext.P12 site plan. PW18, Sri.Manoj Kabeer, recorded the statement of CW24.

Now the question to be considered is; whether the evidence available is sufficient to prove commission of offence punishable under Section 304 of IPC by the accused. If so, whether the same would fall under part I or Part II of 304 of IPC. Now, it is necessary to address the ingredients required to attract the offence under Section 304 of IPC. The same are extracted as under:-

It is relevant to refer to Section 442 of IPC and its ingredients to find commission of offence punishable under Section 448 of IPC. Section 442 of IPC reads as under:

Here, the learned Sessions Judge found commission of offence punishable under Section 304 of IPC, without mentioning whether the offence would come under Part I or Part II. The first part of Section 304 of IPC applies where death is caused with the intention of causing death, or causing such bodily injury as is likely to cause death, and the same is punishable with imprisonment for life, or imprisonment upto ten years, along with fine. Similarly, the second part applies where the death is caused with the knowledge that the act is likely to cause death, but without any intention to cause death, or to cause such bodily injury. Here, the evidence of PW2, supported by PW1, and PW19, the Doctor, who opined that Shaji died in consequence of the head injuries sustained by him, and it is discernible from the prosecution evidence that the above injuries happened to Shaji when he fell down as a result of the slap authored by the first accused/appellant. In such a case, even though the intention to cause death or cause such bodily injury as is likely to cause death could not be found, the knowledge that the act is likely to cause death, even in the absence of intention to cause death or such bodily injury could be found. Be it so, it has to be held that the prosecution succeeded in proving that the first accused/appellant committed offence punishable under Section 304 Part II of IPC.

Coming to the other offence found to have been committed by the first appellant/accused, as already discussed, Section 442 of IPC deals with the offence of house-trespass. That is to say, committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling would attract the offence of house-trespass. Section 441 of IPC defines criminal trespass, and it has been provided that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

In the instant case, the evidence of PW1 and PW2 would show criminal trespass done by the first accused/appellant by entering into the dwelling house where PW2 and the deceased Shaji had been residing, and therefore, the learned Sessions Judge is right in finding that the appellant/first accused committed offences punishable under Section 448 of IPC.

In view of the above discussion, the contentions raised by the learned counsel for the first accused/appellant to unsustain the verdict are found to be not acceptable and the same are repelled.

To sum up, it is held that the first accused/appellant committed offences punishable under Sections 304 Part II and 448 of IPC and the conviction stands modified accordingly. Coming to the sentence, I am inclined to modify the sentence in consideration of the finding that the first accused/appellant committed offences punishable under Sections 304 Part II and 448 of IPC.

In the result, this appeal is allowed in part. The conviction imposed by the learned Additional Sessions Judge is interfered to hold that the appellant/first accused committed offences punishable under Sections 304 Part II as well as 448 of IPC. Accordingly, the appellant/first accused is sentenced as under:

The order suspending sentence and granting bail to the first accused/appellant stands cancelled and his bail bond also stands cancelled.

The accused/appellant is directed to surrender before the Additional Sessions Court-IV, Kottayam to undergo the sentence, forthwith, failing which, the learned Additional Sessions Judge is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Additional Sessions Court-IV, Kottayam, for information and compliance.