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2019 Supreme(Ker) 1050
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, A.M. BABU, JJ.
Ameen — Appellant
Versus
State Of Kerala — Respondent
Crl.A. No. 100 of 2015
Decided on : 12-04-2019
For the Appellant :Sri. M. Revikrishnan, Sri. P. Vijaya Bhanu (Sr.), Sri. Vipin Narayan, Advocates,
For the Respondent: Sri. Alex M. Thombra, Sr. Public Prosecutor
Important points:
The prosecution is not bound to explain each and every injury found on the body of the accused unless there are materials on record to show that such injury has some nexus with the incident in which death was caused-Such a nexus is absent in this case
Headnote:
The Indian Penal Code- Section 302, Section 304, Section 449, Section 451 - The Criminal Rules of Practice, Kerala- Rule 114- Criminal trespass- Committed house-trespass not for committing any offence punishable with death. Therefore Sec.449 of IPC is not attracted- culpable homicide not amounting to murder -The appellant caused death with the knowledge that his act was likely to cause death-He is liable to be convicted under the 2nd paragraph of Sec.304 of IPC. His conviction and sentence under Sec.302 of IPC are liable to be set aside.
Statement of facts:
There was a quarrel and heated exchange of words between the appellant and PW11 Rejimon. Both were autorikshaw drivers and the dispute was regarding parking of their vehicles. Thereafter the appellant along with his two brothers (accused 2 and 3), mother (fifth accused) and a friend (fourth accused) went to the house of PW11 in search of him to attack him. The appellant and accused 2 to 4 trespassed into the varandah of the house of Babu-Attack all- Babu succumbed to the head injury on 2.1.2013
Finding of the court:
The appellant committed criminal trespass by entering into the varandah of the dwelling house of Babu with intent to commit an offence. The appellant thereby committed the offence of house-trespass. But he committed house-trespass not for committing any offence punishable with death. Therefore Sec.449 of IPC is not attracted. We therefore set aside his conviction and sentence under Sec.449 of IPC. Only Sec.451 of IPC is attracted-Convict him thereunder and impose on him a sentence of rigorous imprisonment for two years and a fine of Rs 15,000/-.
Result: Appeal is allowed in part
JUDGMENT :
A.M. Babu, J.
Appellant was the first accused in S.C.211/2013 on the file of the court of session, Kottayam division. He was convicted and sentenced under Secs 302 and 449 of the Indian Penal Code (IPC) by the additional sessions judge, Pala. Accused 2 to 5 were acquitted.
2. Stated below is the prosecution case : There was a quarrel and heated exchange of words between the appellant and PW11 Rejimon. Both were autorikshaw drivers and the dispute was regarding parking of their vehicles. Thereafter the appellant along with his two brothers (accused 2 and 3), mother (fifth accused) and a friend (fourth accused) went to the house of PW11 in search of him to attack him. The appellant and accused 2 to 4 trespassed into the varandah of the house of Babu, the father of PW11. The appellant hit Babu with a stone on his head. He sustained serious injuries and fell down in the courtyard of his house. He was hit with stones by accused 2 and 3. When Babus father (PW1) tried to rescue him, the appellant with the stone hit on the face of PW1. When PWs 2 and 5 came to the courtyard, the fourth accused beat PW5 with a stick on the nose and right knee and the second accused kicked PW2. The appellant snatched the stick from the fourth accused and beat Babu and PW5. The fifth accused who is the mother of the appellant and accused 2 and 3 stood in the courtyard of the house of Babu and abetted her children by instigating them to kill Babu. The incident was at around 6.15 pm on 5.8.2012. Babu succumbed to the head injury on 2.1.2013.
3. The trial court framed charges against the accused persons under Secs 114, 302, 323, 324 and 449 of IPC read with IPC 34. They denied the charges and claimed to be tried. PWs 1 to 21 were examined and Exts P1 to P46 and MOs 1 to 9 were marked on the side of the prosecution. Exts D1 to D3 were marked on defence side during the course of prosecution evidence. The accused persons were examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C.). They were not acquitted under Sec.232 of Cr.P.C. They were called upon to enter on their defence and adduce evidence. They did not adduce any oral evidence, but Exts D4 and D5 were marked on their side.
4. The appellant who was convicted under Secs 302 and 449 of IPC was sentenced to imprisonment for life and a fine of Rs 1,00,000/- under Sec.302 of IPC and rigorous imprisonment for ten years under Sec.449 of IPC. The sentences were directed to run concurrently. The appellant was acquitted of the other offences charged against him.
5. Heard Sri.P.Vijaya Bhanu, the learned senior counsel appearing for the appellant and Sri. Alex M.Thombra , the learned senior public prosecutor.
6. The trial court acquitted accused 2 to 5. The appellant was acquitted of the charges except those under Secs 302 and 449 of IPC. Therefore we have to mainly concentrate on the allegations touching house-trespass and the alleged overt acts of the appellant against Babu.
7. Admittedly there was a quarrel between the appellant and PW11 in connection with the parking of their vehicles. PW11 spoke to the said quarrel. It is not necessary to decide who was at fault in parking the vehicle. According to the prosecution, the appellant and the co-accused went to PW11s house in search of him and committed murder of his father, Babu. The defence version is that the accused persons went to the house of Babu to complain about his son, but Babu cut the second accused with a sickle to cause him an injury. It is also the defence version that there occurred a scuffle and Babu fell on a gas cylinder kept in the courtyard of his house and sustained injury on his head. The prosecution should prove its case beyond reasonable doubts. If the defence version is probable, the prosecution may fail.
8. PWs 1, 2 and 5 are the key witnesses for the prosecution. They are the father, mother and wife of Babu. The locale of crime was their property. We shall discuss their evidence.
9. PW1 gave the FI statement, Ext P1. He spoke
