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VISWAKUMAR @ KUTTAPPI versus STATE OF KERALA, REPRESENTED BY A

High Court of Kerala

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VISWAKUMAR @ KUTTAPPI v. STATE OF KERALA, REPRESENTED BY A - CRL A No. 844 of 2004 [2007] RD-KL 6798 (30 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 844 of 2004()

1. VISWAKUMAR @ KUTTAPPI,
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY A
... Respondent

For Petitioner :SMT.SANGEETHA LAKSHMANA

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

Dated :30/03/2007

O R D E R

J.B. Koshy & T.R. Ramachandran Nair, JJ.


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Crl. Appeal NO.844 of 2004
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Dated this the 30th day of March, 2007

JUDGMENT

Ramachandran Nair, J.

The appellant is the sole accused in S.C. No.724/2003 of the Sessions Court, Kollam. The appellant was charged for offence punishable under Section 302 I.P.C. and having found him guilty of the charge, the court below convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rupees Three Lakhs and in default, to undergo simple imprisonment for three years.

2. The deceased is one Leela Kumari @ Leela, the sister of the appellant. The occurrence was on 2.5.2001 at 12 noon. According to the prosecution, the accused entered the courtyard of the house known as Babu bhavan, with a tapping knife, assaulted the deceased and when she fell down, the appellant inflicted injuries with the knife on the chest, etc. She died at 1 p.m. while being taken to the hospital.

3. The First Information Statement was given by P.W.1 at 2.30 p.m. on 2.5.2001 itself. P.Ws.1 to 15 were examined and Exts.P1 to P11 and M.Os.1 to 8 were marked on the side of the appellant. DWs.1 and 2 were Crl.A.844/2004 -2- examined and Ext. D1 & D2 were marked on the side of the defence.

4. The First Information Statement was given by P.W.1, the husband of the victim. The eye witnesses are P.Ws.2 and 3 who are the children of the victim and were aged 15 and 12 respectively. P.W.4 was declared hostile to the prosecution. P.W.5 deposed that he saw the accused running away and he admitted to have heard the cries of P.Ws.2 and 3.

5. The defence was one of total denial. The following injuries were sustained by the deceased as noted in Ext.P5:

"1. Shaped incised penetrating wound 4 x 1 cm obliquely placed on the left side of chest 6 cm below armpit. Both ends were found sharply cut. The wound entered into the chest cavity through the 4th intercostal space, transfixing the front aspect of pericardium, left ventricle at its middle, back aspect of pericardium and was terminated with neck on the top of middle or right lobe of liver. The left chest cavity contained 800 ml of fluid blood with clot. The left lung was partially collapsed. The direction of the wound was downwards, backwards and to the right. The total minimum depth of the wound was 14.5 cm.

2. Abrabed contusion 2.5 x 2.5 cm on the back of middle of left hand.

3. Abrasion 2 x 0.5 cm on the back of the left wrist.

4. Incised wound 2.5 cm x 0.2 cm skin deep oblique on the front of left side of chest 12 cm outer to midline and 9 cm. below top of shoulder.

5. Abrasion 1 x 0.5 cm on the front of middle of chest just above the lower end of sternum. Crl.A.844/2004 -3-

6. Abrasion 0.5 x 0.5 cm on the front of left side of chest 1.5 cm outer to midline and 1.5 cm below the lower end of sternum.

7. Abrasion 1.5 x 1 cm on the front of right thigh 6 cm below the hipbone." The doctor who was examined as P.W.9, deposed that the victim died due to injury No.1 which was sustained on the chest and also of the injury in the abdomen.

6. The eye witnesses examined are P.Ws. 2 and 3. P.W.1, the husband of the deceased deposed that he along with his wife and two children were residing in the house and it belongs to the mother-in-law. Regarding the share of the father of the deceased, she had some dispute with the accused. He was the driver of an autorickshaw at the relevant time and on getting information, he came to the hospital and was informed by the children that the mother had succumbed to the injuries. He speaks about an incident which occurred on the previous night wherein the accused had thrown stones at their house. His cross examination shows that regarding the incident occurred on the previous night, he had submitted a complaint to the police station.

7. The evidence of P.W.2 shows that on the date of occurrence there was no school and in the morning he went for bathing. According to him, at about 10 a.m. the deceased had gone to the house of the accused and after Crl.A.844/2004 -4- coming back she gave the children food. While the mother and children were standing in the courtyard, the accused came running with a knife and loudly abused the deceased. Seeing this, she ran for shelter to the house of C.W.4 and before she reached there, P.W.4 closed the door and therefore she had to run back. At that time, a scuffle occurred and the accused, stating that today is her last day and that she will be finished, caught hold of her by her hands and in that process, she fell down to the property of C.W.4. which is lying lower. Immediately, the accused stabbed the deceased with the knife in the armpit and then he ran away with the knife. Thereafter, people rushed to the scene and she was taken in an autorickshaw to the hospital. Even though P.W.2 was cross examined at length, nothing could be brought out to discredit his evidence. He denied the suggestion made by the defence that the deceased had gone to the house of the accused and had tied the wife of the accused in a tree. According to him, even though she went to the house, one or two utensils therein alone were damaged.

8. P.W.3 is the daughter of the victim who was aged 12 at the time of the incident. She also corroborated the evidence of P.W.2 She had also stated clearly about the details of the occurrence and the incident that occurred during the previous night that accused threw stones at their house Crl.A.844/2004 -5- and abused them. According to her, on that day the school was having a holiday and in the morning the deceased had gone to the house of the accused and in the scuffle some utensils had been damaged. Later on, after she returned from there, the accused came running with a knife openly declaring that she will be killed. According to P.W.3, while she along with P.W.2 and mother were standing in the courtyard, the accused came running and seeing it, deceased ran to the house of C.W.4 who closed the door seeing her and thereafter a scuffle occurred and the mother was pushed by the accused and in that process she fell down to the property of P.W.4. Immediately, the accused stabbed her with the knife below the left armpit and he ran away with the knife. She was taken to the hospital in an autorickshaw and the children accompanied her. In the cross examination also, she had deposed about the incident that occurred in the morning and also about the altercation that had occurred at that time.

9. P.W.5 is a relative of the deceased and according to him, he heard the children crying and when he went to the house of the victim, he saw the accused running away with the knife. P.W.4 is a neighbour and according to her, when the incident occurred, she was inside the house. When she found the accused coming running with the deceased and when the scuffle occurred, she closed the door. Only after other people assembled in the Crl.A.844/2004 -6- place, she opened the door and found the deceased lying in the property.

10. In the light of the above evidence, the question is whether prosecution has been successful in establishing the guilt of the accused. The counsel for the appellant argued that the evidence adduced is not sufficient to prove the guilt of the accused. It was contended that the evidence of P.Ws.2 and 3 could not have been accepted as they are child witnesses.

11. P.Ws.2 and 3 are aged 15 and 12 respectively at the relevant time. They have deposed the substratum of the prosecution case and their evidence is natural and convincing. There are no vitiating contradictions or other inadequacies to reject their evidence. The argument raised that the prosecution case has not been proved by clear medical evidence about the injury inflicted on the deceased, is also not correct. We find, on a reading of Ext.P5 and the evidence of the doctor, that the prosecution has successfully established that the injuries have been caused by the knife used by the accused. The evidence of P.Ws.2 and 3 has also been corroborated by the evidence of P.Ws.4 and 5.

12. The evidence of D.W.2, the wife of the accused cannot be accepted. There were some disputes between the families regarding the sharing of properties. There is nothing to show that deceased might have Crl.A.844/2004 -7- sustained injuries otherwise than as alleged by the prosecution. As found already, Ext.P5 as proved by P.w.9 would show that there was incised penetrating wound on the left side of the chest below the armpit which according to P.W.9, was sufficient in the ordinary course of nature, to cause death. The fact that the accused had inflicted injuries is clearly established from the evidence of P.Ws.2 and 3. For inflicting injury, he overpowered the victim who had fell down in that process. She sustained injuries while lying down on the ground. There is no evidence to support the defence version that there was a scuffle and accused wanted to ward off attack against him. Hence, we find no ground to interfere with the conviction and sentence awarded. The court below has awarded a fine of Rs.3 lakhs which we reduce to Rs.3,000/-. Hence the appeal is dismissed upholding the conviction and sentence and with the only modification that the fine of Rs.3 lakhs awarded by the court below is reduced to Rs.3,000/-.

(J.B. Koshy, Judge.)

(T.R. Ramachandran Nair, Judge.)

Crl.A.844/2004 -8-

J.B. Koshy & T.R. Ramachandran Nair, JJ.


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Crl. Appeal NO.844 of 2004
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JUDGMENT

30th day of March, 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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