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2005 Supreme(Ker) 133
Judges : J.B.KOSHY,K.M.JOSEPH
Manoj - Appellant
Versus
State - Respondent
Case No : Crl.App.No.1914 of 2003
Decided On : 02/22/2005
Advocates Appeared :
For the Appellant : Tony John Vettath, Advocate. For the Respondent: Sujith Mathew Jose, Public Prosecutor.
Headnote:
Criminal Law - Criminal Trial - Indian Penal Code, 1860 - Section 96 and 302 - Evidence Act, 1872 - Section 27 - Criminal Procedure Code, 1973 Section 154 - Offence of Murder - Self-defence - Investigation - First Informant Statement - Accused had some small abrasions, which was caused during incident when he was produced before the Magistrate Court, he had no case that he sustained any serious injury. It is the duty of the prosecution to explain the serious injuries suffered by the accused - But accused had only very minor injuries those injuries can even be self -inflicted - Considering direct and cogent evidence adduced by the prosecution witnesses, Court cannot hold that the case against the accused can be disbelieved merely because the minor and superficial injuries were not explained by the prosecution. Mere non explanation of injuries on the accused will not affect the prosecution case - Held, merely because tF.I. Statement was sent to the Court on the next day, entire prosecution case can be thrown off - The delay in registering complaint by itself is not fatal if the ocular evidence adduced by the prosecution is worthy of acceptance - There are eye witnesses including the injured eye witness to the incident - Mere lapses of investigation will not vitiate charges, if prosecution is able to prove the case on the basis of the evidence adduced in a case - No material to show that any effort was made by the investigating agency to concoct a version or any prejudice has been caused to accused merely because the F.I.R. reached the Court only on the next day - The plea of self-defence, cannot be measured in a golden scale - A person apprehending his death or his relative's death, in a fear of their life, may do certain acts which may not be exactly required in the circumstances, but accused has to prove that there was reasonable apprehension of attack against him or near ones - Even though it is enough for the accused to prove that he apprehended danger to his life or the near ones by preponderance of probabilities proving burden is on him to establish his defence plea - Mere use of abusive words is not an enough defence for inflicting fatal injuries on three unarmed persons.
The Judgment of the Court was delivered by Koshy, J.— Three accused were charge-sheeted under Sections 302 and 307 read with Section 34 I.P.C. Accused Nos.2 and 3 were acquitted. Accused No.1 was found guilty under Sections 302 and 307 read with Section 34 I.P.C. Accused No.2 is the mother of Accused No.1. Accused No.3 is the sister of Accused No.1. According to the prosecution, a boy of 17 years old and his mother were brutally murdered and the father of the boy was severely injured in the incident. The allegation of the prosecution was that on 17-10-1996 at 3-45 p.m. in furtherance of the common, intention to commit murder of P.W.2 and his family members on account of the enmity regarding the dispute of a pathway, accused 2 and 3 pelted stone towards Shinoj, son of P.W.2 and when Shinoj and Chinnamma, wife of P.W.2, came to the pathway of the property of Shri M.T. Thomas, the first accused stabbed Shinoj and Chinnamma and Stephan with a knife causing grievous injury and the said Chinnarnma and Shinoj succumbed to the injuries on the way to the hospital and P.W.2 sustained grievous injury and undergone treatment in the Medical College Hospital, Kozhikode and thereby the accused committed murder of Chinnamma and Shinoj and attempted to murder P.W2. The identity of the accused as well as the injured are not disputed.
2. Ext.P-12 is the Postmortem Certificate of Shinoj and Ext.P-13 is the Post-mortem Certificate of Chinnamma. The antemortem injuries of Chinnamma as noticed in Ext.P-13 Post-mortem Certificate are as follows:
"Incised stab wound curved with convexity upwards and outwards on the right side of chest. The upper limb was 4 x 0.3 cm. with square end at the upper part which was situated 5 cm. Outer to midline in the 5th inter costal space. The wound continued downwards and inwards 2 x 0.3 wich sharp end at the lower end. In continuation with the upper and there was triangular shaped abrasion 1 x 0.4 to 1 cm. broadest at the end of incised wound.
Underneath the upper limb of the stab wound, the 6th rib and the 5th intercostal space was cut showing a wound 5.5 x 0.4 cm. The wound extended downwards, backwards and to the left piercing the inner aspect of the lower part of right lung (3 x 0.4 cm.) 1.5 cm. above its margins and then coming out, on the back aspect of lower lobe, 6 vcm below the inter lobular fissure and piercing the pleural surface 1.2 x 0.5 cm. on the 8th rib, 5cm. outer to its vertebral attachment. The total depth was 10CM."
The Doctor's opinion is that the deceased died due to the stab injury on the right side of the chest. Ext.P-12 Post-mortem Certificate regarding Shinoj shows the following antemortem injuries:
"1. Incise wound 4.2 x 0.4 cm. on the left side of chest oblique, inner upper end was square cut and was 8 cm. outer to midline, on the 9th inter costal space. It was directed downwards, and to the front for a depth of 4 cm. It pierced the 9th inter costal space and terminated just below the pleural surface.Incised wound 4.2 x 0.4 cm. on the front of abdomen, horizontal 1.5 cm. below umbilicus the left end was square cut and right end was pointed and was in line with the right margin of the umbilicus. It was directed downwards, backwards and to the right piercing the intestinal mesentry 240 cm. proximal to the ileocaecal junction, cutting the intestine through 287 cm. proximal to ileocaecal junction (3.6 x 0.2 cm.) near the mesentric border reached the posterior wall of pelvis right side cutting the anterior portion of right iliac artery 2 cm. distal to its origin. The posterior wall of pelvis right side was infiltrated with blood. Three metre long loup of intestine was protruding out through the incised wound on the abdomen. The intestine was contaminated with mud particle and piece of dried leaves."
The opinion as to the cause of death by the Doctor was the death was due to stab injury to abdomen. Ext.P-11 is the Wound Certificate issued with respect to the injuries caused to P.W.2. The de
