Full Judgment Text
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PETITIONER:
A.M. KUNHIKOYA @ KOYA
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT26/03/1993
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
ANAND, A.S. (J)
CITATION:
1993 SCR (2) 692 1993 SCC Supl. (3) 641
JT 1993 (3) 573 1993 SCALE (2)275
ACT:
Indian Penal Code--Sections 148, 149, 302, 304 Part II and
323--Appellant--Taking into account evidence of PWs and
circumstances of case--Held appellant had knowledge that
injury was likely to cause death--No intention to cause
death of victim.
HEADNOTE:
The appellant along with others was tried for offences under
Section 302 read with Sections 148, 149 and 323 of the
Indian Penal Code.
The case of the prosecution was that on 16.9.80 Mammed Kutty
at 6.00 a.m. in the morning pelted stones at the house of
the deceased. At about 12.00 noon while Mammed Kutty and
his brother Abdulla Kutty were passing in front of the house
of the deceased, a protest was made by the deceased in
respect of the morning incident which was denied.
At about 2.00 p.m. when the deceased was sitting with his
wife (PW 4) and others on the varandah of his house, 5
persons including the appellant came to his courtyard and
challenged him to come out, if he wanted to beat Mammed
Kutty and Abdulla. The deceased stepped out into his
courtyard and asked the accused persons not to create a
scene, when the appellant and the other accused gave some
blows to the deceased on his hand. Thereafter the deceased
raised his hand to give a blow to the appellant, when the
appellant took out a dagger from his waist and gave an
injury on the upper part of the chest of the deceased near
the left shoulder and above the armpit. The deceased ran
towards the house of PW1 and fell on the varandah.
Therefore, the accused persons escaped. The victim was
removed to the Medical Hospital where he was examined by PW
9, but soon thereafter expired.
The F.I.R. was lodged at 7.15 p.m. and after investigation
the chargesheet was submitted against the five accused
persons. At the trial the prosecution examined 4 eye
witnesses, PW1 to PW4, and PW8 the doctor who held the post
mortem examination.
693
The trial court on consideration of the materials on record
came to the conclusion that the charges leveled against the
accused persons had not been established beyond all
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reasonable doubt, and on that finding acquitted all the
accused including the appellant. Great importance was
attached to the injury found on the person of Abdulla and
adverse inference was drawn against the prosecution case.
On appeal by the State, the High Court convicted the
appellant under Section 302 and sentenced him to undergo
rigorous imprisonment for life. Another accused (Alavi) was
convicted under Section 323 of the Penal Code and sentenced
to payment of fine of Rs. 250. The acquittal of the
remaining 3 accused persons by the Trial Court was affirmed.
The High Court held that mere non disclosure of the
superficial injuries on the person of Abdulla even if those
injuries had been caused in the same occurrence, do not in
any manner affect the persecution case.
In the appeal to this court it was contended on behalf of
the appellants that the statements made in the First
Information Report, the evidence of the eye witnesses in
connection with the morning incident of pelting of stones,
show that it was a concoction and that none had pelted any
stone on the house of the deceased, and that if this part of
the prosecution case is disbelieved then it has a bearing on
the main occurrence itself. It was further submitted, that
the prosecution had suppressed the real manner of occurrence
in as much as Abdulla was first assaulted by the prosecution
party on the same day at about 130 p.m. and that he was
hospitalised after receiving the injuries, reliance being
placed on the evidence of DW1 who had stated that he had
examined the injuries on the person of Abdulla on 16.9.80 at
430 p.m.
Allowing the appeal in part, this Court,
HELD:1. It is well settled that if the evidence of the
eye witnesses is held to be reliable and inspires confidence
then the accused cannot be acquitted solely on the ground
that some superficial injuries found on the person of the
accused concerned, had not been explained by the
prosecution. [696 H]
In the instant case, so far as the four eye witness are
concerned they have been named in the FIR. The FIR was
lodged at 7.15 p.m., the same evening, within two hours of
the death of the victim. The FIR mentions the
694
details of the occurrence, and the version disclosed therein
had been supported by the eye witness before the Court. No
reason has been shown as to why the evidence of these P.Ws
should not be accepted. [697 C]
2.The prosecution has admitted that the accused persons
were not carrying any weapon in their hands and during the
protest made, a sudden quarrel and fight took place between
the prosecution party and the accused persons. This part of
the version had been admitted at the trial by the eye-
witnesses in their evidence, who also stated that first the
appellant and the other co-accused gave blows on the hand of
the deceased and that the knife blow was given by the
appellant when the deceased was trying to give a counter
blow to the appellant. [697 F]
In view of the admitted position that a sudden right and
quarrel preceded the giving of the knife blow by the
appellant to the victim which in all probability was given
not while the victim and the appellant were standing face to
face but during struggle between them, causing tailing of
the injury, it shall not be just and proper to hold that the
appellant had an intention to cause the death of the victim,
but only knowledge that injury which he was causing was
likely to cause death. In such a circumstance it is not
possible to uphold the conviction of appellant under Section
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302 of the Indian Penal Code. It is therefore set aside,
and the appellant convicted under Section 304 Part 11 of the
Indian Penal Code and sentenced to undergo rigorous
imprisonment for 7 years. [697 H,698 A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 818 of
1985.
From the Judgment and Order dated 4.7.1985 of the Kerala
High Court in Criminal Appeal No. 251 of 1982.
P.S. Poti and Ms. Malini Poduval for the Appellant.
M.T. George for the Respondent.
The Judgment of the Court was delivered by
N.P. SINGH, J. The appellant along with others was put on
trial for offenses under sections 302 read with 149, 148,
323 of the Penal Code on the charge of committing the murder
of Moideen Kutty (hereinafter referred to as the deceased).
The Trial Court on consideration of the
695
materials on record came to the conclusion that the charges
leveled against the accused persons have not been
established, beyond all reasonable doubt and on that finding
acquitted the appellant as well others. On appeal being
filed on behalf of the State of Kerala the High Court
convicted the appellant under section 302 of the Penal Code
and sentenced him to undergo rigorous imprisonment for life.
So far another accused Alavi who had been acquitted by the
Trial Court was also convicted by the High Court under
section 323 of the Penal Code and sentenced to pay a fine of
Rs. 250 and in default thereof to suffer simple imprisonment
for a term of one month. The acquittal of other accused
persons was affirmed by the High Court by dismissal of the
appeal against them.
The case of the prosecution is that on 16.9.1980 Mammed
Kutty at 6.00 A.M. in the morning pelted stones at the house
of the deceased. At about 12.00 in the noon while Mammed
Kutty and his brother Abdulla Kutty were passing in front of
the house of the deceased, a protest was made by the
deceased in respect of the morning incident. They denied
that any stone had been pelted by them. It is the further
case of the prosecution that at about 2 P.M. while the
deceased was sitting with his wife (PW4) and others on the
varandah of his house, five persons including the appellant
came to his courtyard and challenged him to come out, if he
wanted to beat aforesaid Mammed Kutty and Abdulla. The
deceased stepped out into his courtyard and asked the
accused persons not to create a scene. At this the
appellant and the other accused (since acquitted) gave some
blows to the deceased on his hand. Thereafter the deceased
raised his hand to give a blow to the appellant. At this
very moment, the appellant took out a dagger from his waist
and gave an injury on the upper part of the chest of the
deceased near the left shoulder and above the armpit. The
deceased ran towards the house of PW1 and fell on the
varandah. Thereafter the accused persons escaped. The
victim was removed to the Medical Hospital Calicut, where he
was examined by PW9. But soon thereafter he expired. The
First Information Report was lodged at 7.15 P.M. After
investigation the charge sheet was submitted against five
accused persons.
At the trial prosecution examined four eye witnesses PW1 to
PW4. The doctor who held the post mortem examination was
examined as PW8. He found only one incised penetrating
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wound vertically placed on the front of left shoulder above
the left armpit ’tailing 6 cm. in length running towards
from the lower sharp end." According to his opinion, "The an
696
died because the artery was cut..... This injury became
dangerous only because it cut the artery....... In the cross
examination PW8 stated that it was impossible to cause an
injury like one which was found on the person of the victim
by the assailant standing in front of the victim. He also
stated that the tailing of the injury show that either the
knife was dragged after stabing or that the injury was
caused during the course of the struggle. According to him,
if the accused had given a direct blow, as is normally done,
there would not have been the tailing of the injury.
The learned counsel appearing for the appellant placed the
statement made in the First Information Report, the evidence
of the eye witnesses, in connection with the morning
incident of pelting of stones, to show that it was a
concoction and none had pelted any stone on the house of the
deceased. According to the learned counsel, if this part of
the prosecution case is disbelieved then it shall have a
bearing on the main occurrence itself. It was also pointed
out that the prosecution has suppressed real manner of
occurrence in as much as one Abdulla on the side of the
accused persons was first assaulted by the prosecution party
on the same day at about 1.30 P.M. and he was hospitalised
after having received the injuries. That incident was an
integral part of the occurrence which has not been disclosed
by the prosecution. In this connection our attention was
drawn to the evidence of DW1 who has stated that he had
examined the injuries on the person of one Abdulla on
16.9.1980 at 4.30 P.M. and found three injuries on his
person, (i) A contusion on the left shoulder 4 x 2 cm, (ii)
abrasion below the right collar bone 3 x 5 cm. and (iii)
injury on the outer side of the left ankle 4 x 3 cm. He has
also stated that the said Abdulla had alleged that he had
been assaulted with a wooden stick at 1.30 P.M. the same
day.
The Trial Court while acquitting the accused persons has
attached great importance to the injury found on the person
of aforesaid Abdulla and has drawn adverse inference against
the prosecution case. The High Court has rightly pointed
out that merely non-disclosure of the aforesaid superficial
injuries on the person of Abdulla even if those injuries had
been caused in the same occurrence, shall not in any manner
affect the prosecution case: It is well-settled that if the
evidence of the eye witnesses are held to be reliable and
inspire confidence then the accused cannot be acquitted
solely on the ground that some superficial injuries found on
the person of the accused concerned, had not been explained
by the prosecution.
697
According to us, if the evidence of four eve witnesses
including the evidence of the son and the wife of the
deceased are accepted as reliable and trust worthy then the
prosecution case cannot be rejected merely on .the ground
that the incident of pelting of the stones on behalf of the
accused in the early morning had not been proved or
established or that some minor injuries on the person of
Abdulla caused in the same occurrence had not been disclosed
and explained by the prosecution.
So far the four eve witnesses are concerned they have been
named in the First Information Report. The First
Information Report was lodged at 7.15 P.M. the same evening,
within two hours of the death of the victim. In the First
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Information Report the details of the occurrence was men-
tioned. The version disclosed in the First Information
Report has been supported by the eye witnesses before the
Court. The learned counsel appearing for the appellant
could not point out any reason why their evidence against
the appellant should not be accepted. It may be pointed out
that in the First Information Report itself PW1, the
informant, stated that this appellant came to the house of
the deceased and challenged him as to who was there to beat
Abdulla and Muhammed Kutty. He further stated that having
heard this the deceased moved towards them and asked them to
go back. At that very moment this appellant and the other
co-accused Alavi gave him blows on his hand. Thereafter the
deceased tried to give counter blow to the appellant. Then
the appellant took out a knife from his waist and gave a
blow from the said knife, to the deceased at his left collar
bone. The prosecution very fairly admitted that accused
persons were not carrying any weapon in their hands and
during the protest made, a sudden quarrel and fight took
place between the prosecution party and the accused persons.
Even at trial evidence the eve witnesses have admitted this
part of the version and have stated that first the appellant
and the other co-accused gave blows on the hand of the
deceased. The knife blow was given by the appellant when
the deceased was trying to give a counter blow to the
appellant.
There is no dispute that the appellant suddenly took out the
knife during the course of the quarrel and fight from his
waist. From the evidence of doctor PW8 referred to above it
appears that injury aforesaid could not have been caused by
the assailant standing in front of the victim. It could
have been caused only during the struggle. In view of the
admitted position that a sudden fight and quarrel preceded
the giving of the knife
698
blow by the appellant to the victim which in all
probabilities was given not while the victim and the
appellant were standing face to face but during a struggle
between them, causing tailing of the injury, it shall not be
just and proper to hold that appellant had an intention to
cause the death of the victim. Taking the evidence of the
witnesses along with circumstances of the case, according to
us, the appellant had the knowledge that injury which he was
causing was likely to cause death but he had no intention to
cause the death of the victim. In such a circumstances it
is not possible to uphold the conviction of the appellant
under section 302 of the Penal Code. Accordingly, the
conviction and sentence passed against the appellant under
section 302 of the Penal Code are set-aside. The appellant
is convicted under section 304 part 11 of the Penal Code and
sentenced to undergo rigorous imprisonment for seven years.
The appeal is allowed in part to the extent indicated above.
The bail bond is cancelled.
N.V.K. Appeal partly allowed.
699