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MALINI PODUVALM. T. GEORGE

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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