Kerala High Court
Shibu vs State Of Kerala on 6 March, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
CRL.A NO. 1462 OF 2018
CRIME NO.1914/2013 OF Ezhukone Police Station, Kollam
(AGAINST THE ORDER/JUDGMENT DATED 30.11.2018 IN SC NO.158 OF
2016 OF II ADDITIONAL DISTRICT COURT,KOLLAM ARISING OUT OF
THE ORDER/JUDGMENT IN CP NO.74 OF 2015 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,KOTTARAKKARA)
APPELLANTS/ACCUSED:
1 SHIBU
AGED 33 YEARS
S/O. THANKACHAN, PUTHANVILA VEEDU, THRIPPALAZHIKAM
MURI, KAREEPRA VILLAGE.
2 KOCHUMMAN @ THANKACHAN,
AGED 68 YEARS
S/O. CHACKO, PUTHANVILA VEEDU, THRIPPALAZHIKAM
MURI, KAREEPRA VILLAGE.
3 VINOD,
AGED 38 YEARS
S/O. VIJAYAN PILLAI, NIRANJANA BHAVAN, NEAR
SAYIPPUMUKKU,KUZHUMATHIKKAD MURI, KAREEPRA VILLAGE.
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BY ADVS.
S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031,(CRIME NO.1914/2013 OF EZHUKONE
POLICE STATION, KOLLAM DISTRICT).
OTHER PRESENT:
SMT NEEMA T V, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2025, ALONG WITH CRA(V)No.26/2019, THE COURT ON
6/3/2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 3
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
CRA(V) NO. 26 OF 2019
CRIME NO.1914/20113 OF Ezhukone Police Station, Kollam
(AGAINST THE ORDER/JUDGMENT DATED 30.11.2018 IN SC
NO.158 OF 2016 OF II ADDITIONAL DISTRICT COURT,KOLLAM ARISING
OUT OF THE ORDER/JUDGMENT IN CP NO.74 OF 2015 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA)
APPELLANT/DEFACTO COMPLAINANT(PW1):
LISSY,
AGED 59 YEARS
W/O.LATE THAMPACHAN, PLAVILAPUTHEN VEEDU,
THRIPILAZHIKOM MURI, KAREEPRA VILLAGE.
BY ADV ALEXANDER GEORGE
RESPONDENT/ACCUSED 1 TO 3 & STATE:
1 SHIBU,
AGED 36 YEARS
S/O.THANKACHAN, PUTHENVILA VEEDU, THRIPPALAZHIKAM
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MURI, KAREEPA VILLAGE - 691 509.
2 KOCHUMMA @ THANKACHA,
AGED 71 YEARS, S/O.CHACKO, PUTHANVILA VEEDU,
THRIPPALAZHIKAM MURI, KAREEPA VILLAGE - 691 509.
3 VINOD,
AGED 41 YEARS, S/O.VIJAYAN PILLAI, NIRANJANA
BHAVAN, NEAR SAYIPPUMUKKU, KUZHUMATHIKKAD MURI,
KAREEPA VILLAGE - 691 509.
4 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING
BEEN FINALLY HEARD ON 03.03.2025, ALONG WITH
CRL.A.1462/2018, THE COURT ON 6/3/2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 5
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RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal Nos.1462 of 2018 & 26 of 2019
---------------------------------
Dated this the 6th day of March 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J
Criminal Appeal No.1462/2018 is filed by accused Nos.
1 to 3 in SC No.158/2016 challenging their conviction and
sentence imposed under Section 304 Part II and Section 447 read
with Section 34 IPC by the Additional Sessions Court-II, Kollam.
Criminal Appeal(V)No.26/2019 is filed by the wife of deceased
Thampachan (PW1) under Section 372 proviso of Cr.P.C.,
aggrieved by the conviction of the accused for a lesser offence.
A conspectus of the Prosecution case
2. Accused Nos.1 and 2 are neighbours of deceased
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Thampachan. On 6/12/2013 at 8.45 pm, there occurred a spat
between Thampachan and the third accused at a place near the
hospital junction. At that time, Thampachan slapped the third
accused on his face. In order to exact revenge, on 6/12/2013 at
about 9.45 pm at a place called Thrippalazhikom, accused Nos. 1
to 3 conspired together to murder Thampachan. In pursuance of
the conspiracy, at about 10 pm on the same day, the third accused
went to the house of Thampachan and called him outside. When
Thampachan came out, accused No.3 gave him a blow using a
wooden stick. Then accused Nos. 1 and 2 also joined the attack
and all of them together beat Thampachan using wooden sticks.
When the family members and locals intervened, the accused left
the scene. Even though the relatives of Thampachan persuaded
him to avail medical aid, he refused. On the next day at about
7.10 am, accused Nos. 1 and 2 trespassed into the courtyard of
the house of Thampachan and slapped him on his face. Thereafter,
Thampachan was taken to Taluk Hospital, Kottarakkara and after
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five days of treatment there, referred to the Medical College
Hospital, Thiruvananthapuram. On 11/10/2013, at about 22.30
hours, Thampachan breathed his last. Hence, the prosecution
alleged that the accused have committed the offences punishable
under Sections 120B, 447 & 302 read with Section 34 IPC.
Proceedings before the trial court
3. In order to prove the prosecution case, PW1 to PW23 were
examined and Exts. P1 to P33 and MO1 to MO3 were marked.
Ext.D1 contradiction was also marked through PW1 by the
defence. On examination under Section 313 Cr.P.C,the accused
denied all the incriminating circumstances appearing against them
in evidence and contended that they were innocent. From the side
of the accused, DW1 was examined. The trial court, on an
appreciation of the evidence on record, found the accused not
guilty of the offences punishable under Section 302 r/w Section 34
and Section 120B IPC. But, it found all the accused guilty of
committing the offences punishable under Section 304 Part-II read
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with Section 34 IPC and convicted them thereunder. It also found
the first and the second accused guilty of committing the offence
punishable under Section 447 read with Section 34 IPC and
convicted them thereunder. The trial court sentenced accused Nos.
1 to 3 to undergo rigorous imprisonment for four years each and
to pay a fine of Rs.50,000/- each under Section 304 Part II read
with Section 34 IPC. In case of default, the accused were ordered
to undergo rigorous imprisonment for a further period of three
months each. It also sentenced accused Nos. 1 and 2 to undergo
simple imprisonment for one month each and to pay a fine of
Rs.500/- each under Section 447 read with Section 34 IPC. In case
of default, they were ordered to undergo simple imprisonment for
a further period of five days each. From the fine amount, an
amount of 1,00,000/- was ordered to be paid as compensation to
PW1 under Section 357(1)(b) Cr.P.C.
A compendium of the Prosecution evidence
4. PW1 is the wife of the deceased Thampachan. She
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deposed that on 6/12/2013 at about 8.pm, her husband had gone
to a place called Aashupathri Mukku and there, had met the third
accused. A verbal duel occurred between them and when the third
accused uttered abusive words, Thampachan clouted him.
Thampachan came back and told her about the incident. Later, in
the evening she saw the first and the third accused in a motorcycle
going to the house of the first accused. After some time, the third
accused came outside her house and called her husband. When
Thampachan went outside, the third accused attempted to assault
him with a stick. Thampachan avoided the hit and started to come
back. At that time, the third accused beat Thampachan on his back
using the stick. When Thampachan fell down all the accused
together beat him using sticks and stamped him. The stick held
by the second accused got broken and a piece of it fell near the
well. When the family members and locals intervened, the accused
left the scene. Thereafter, they lifted Thampachan into her house
and when offered medical aid, Thampachan informed them that he
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could wait till the next morning. On 7/12/2013 at about 7 am,
when Thampachan uttered abusive words against the first and the
second accused, who were standing in front of their house, they
came running and clouted him on his face and back repeatedly.
She took Thampachan inside the house and made him lie in a cot.
When the pain aggravated, Thampachan was taken to the Taluk
Hospital and admitted there. On the way, they dropped in at the
police station and she gave a written complaint to the S.I. But no
one came and the statement of Thampachan was recorded by the
police only on the 11th. In the meantime, the condition of
Thampachan worsened and he was taken to the Medical College
Hospital. At about 10 pm, Thampachan died. She identified the
accused and the weapons used by them and stated that she had
seen them in the light emanating from the houses. She also stated
that, while the statement of Thampachan was recorded by the
police, she was present there and that Thampachan had signed in
it, after the same was read over to him. She identified the
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signature of Thampachan and the FIS was marked as Ext.P1.
During cross-examination, she stated that she had grievances
against the doctor, but she did not make any complaints.
5. PW2 is Thampachan’s brother’s son. He deposed that on
6/12/2013 at about 9.30 pm, while he along with his family
members were in front of their house, he heard someone call
Thampachan. When he went there, he saw the third accused trying
to hit Thampachan using a stick. Thampachan tried to avoid the
hit, but the third accused hit him on his back. When Thampachan
fell down, the first and the second accused came with sticks from
their house and beat Thampachan blue and black all over his body.
When the family members of Thampachan tried to prevent the
attack, the first accused threatened them and all the accused
together beat and stamped Thampachan. When the locals
assembled, the accused left the scene. Thereafter, all of them
together lifted Thampachan and took him inside his house.
Thampachan refused to be taken to the hospital. On 7/12/2013, at
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about 7.30 am, when Thampachan uttered abusive and offensive
words against the first and the second accused, they clouted
Thampachan on his face. He along with others intervened and
took Thampachan into his house. He identified the accused and the
weapons used by them as MO1 to MO3. Later, he also pointed out
the place of occurrence to the police and signed in Ext.P2 scene
mahazar. On 11/12/2013 he pointed out the piece of stick lying
there to the police, who seized it as per Ext.P3 mahazar. During
cross examination, he stated that when the third accused called
Thampachan, he was standing in front of his house and accused
Nos 1 and 2 came immediately after the third accused hit
Thampachan.
6. PW3 is the doctor attached to the Taluk Hospital,
Kottarakkara. She deposed that on 7/12/2013 at about 11.40 am,
he had examined Thampachan who had approached her with
history of assault using a stick by Shibu, Thankkan and Vinod at
9.30 pm on 6/12/2013 and 7.30 am on 7/12/2013. The wound
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certificate issued by her was marked as Ext.P4. She stated that the
cause of injuries could be, as alleged.
7. PW4 is the doctor who treated the deceased in Taluk
Hospital during the period from 7/12/2013 to 11/12/2013. The
case records of the victim were identified and was marked through
her, as Ext.P5. On examination, fracture was suspected in the 5th
rib and on 11/12/2013, she referred the patient to the Medical
College, Hospital suspecting Pneumothorax and coronary artery
disease.
8. PW6 is the police officer, who recorded the First
Information Statement given by Thampachan. He deposed that on
11/12/2013, he went to the Taluk Hospital and recorded Ext.P1
statement of the victim. Thereafter, he read over the statement
and obtained the victim’s signature.
9. PW9 is a witness to Ext.P9 mahazar and recovery of MO1.
He deposed that he had seen the first accused accompanying the
police and the first accused producing MO1 before them.
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10. PW11 is the police officer, who registered Ext.P11 FIR on
the basis of Ext.P1. He also prepared Ext.P12 scene mahazar and
seized pieces of wild sticks lying there and produced them before
the court. He identified the sticks as MO2 series. In his cross
examination, he stated that the two pieces seized were part of a
single stick.
11. PW 12 is the police officer, who conducted the inquest
and prepared Ext.P7 report. PW13 is the police officer, who
arrested accused Nos. 1 to 3 by preparing Ext.P14 to P22
documents.
12. PW15 deposed that, at 8pm on 6/12/2013 he had gone
to Modern Bar in Kundara and had witnessed a tussle between a
few people The first accused was also involved in the tussle and he
asked Thampachan to go to his house.
13. PW16 is a distant relative of deceased Thampachan. On
7/12/2013, at about 8 am, he went to Thampachan’s house to
take him to the hospital. At that time, PW1 told him about the
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events, which took place on that day and the previous day. While
taking the victim in an auto rickshaw, he along with PW1 dropped
in at Ezhukone Police Station and gave a written complaint giving
all the details. The police advised them to take the victim to the
hospital and promised to come and take the statement. But, no
one came. It was only on 11/12/2013, the police came and took
the statement of the victim from the hospital.
14. PW 17 is the doctor who conducted the postmortem
examination and issued Ext.P26 certificate. She noted 26 ante
mortem injuries on the body of the deceased and opined that the
death was due to injuries sustained to the chest. She also stated
that injury Nos. 1 to 4 can be caused by using MO1 to MO3 sticks.
In her cross examination, she stated that she did not get any
evidence of past heart attack on the deceased.
15. PW 22 is one of the investigating officers in this case. He
deposed that he took over the investigation of this case on
13/12/2013 and thereafter collected Ext.P5 treatment records, as
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per Ext.P8 mahazar. On the basis of Ext.P9(a) confession made
by the first accused, he recovered MO1 by preparing Ext.P5
mahazar and forwarded MO1 and MO2 to the court as per Ext.P30
property list. On the basis of Ext.P29(a) confession statement of
the third accused, he recovered the motorcycle used by the third
accused by preparing Ext.P29 mahazar. Similarly, on the basis of
Ext.P3(a) confession statement of the third accused, he recovered
MO3. Thereafter, he prepared Exts.P28 scene mahazar and
produced the articles seized as per Exts.P3 and P29 before the
court as per Ext.P31 property list. He also prepared Ext.P2 scene
mahazar and filed Ext.P32 report adding Section 120B IPC.
16. PW 23 is the investigating officer, who filed the final
report and produced Ext.P33 FSL report.
Defence Evidence
17. From the side of the accused, DW1, a forensic expert by
name Sherly Vasu was examined. She deposed that she retired as
Principal of the Medical College Hospital, Thrissur and also had
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worked as the head of the Department in Forensic Medicine during
the period from 2001 to 2014. She stated that injury No.4, in Ext.P
26 when taken as a whole, by itself may not cause death because
there is no tear of intercostal vessels and there is no tear in the
lungs itself. Injury No.4 is a grievous injury, but is not life
threatening. In her opinion injury No.12 is the cause of death of
Thampachan. According to her, injury No.12 is a natural disease
and myocardial infarction stated in Ext.P26 is the result of the
injury No. 12. In the case on hand, massive infraction of heart,
kidneys and adrenals, happened due to injury No.12 in between 24
to 48 hours and based on these facts, she cannot agree with the
cause of death stated in Ext.P26. She further stated that none of
the injuries mentioned in Ext.P26 accelerated the death of the
injured and the death is due to natural causes and is not a
homicidal death.
Contentions of the appellants/accused
18. The learned Counsel for the appellants/accused Adv.
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S.Rajeev, at the outset, itself submitted that the second
appellant/second accused had died during the pendency of this
appeal and the first appellant/first accused is his son and legal
heir. On merits, he contended that the prosecution has not proved
its case beyond reasonable doubt and there is no evidence
available even to convincingly prove that the death of Thampachan
is homicidal. He submitted that PW-17, the doctor, who conducted
the postmortem examination has not gone through the earlier
treatment records of the deceased and has not considered the
impact of injury No.12, which DW1 has pointed out as the cause of
death. He also submitted that the prosecution has suppressed the
treatment records of the deceased in the Medical College Hospital,
where he died while undergoing treatment and if the same was
produced, it would have given a clear picture as to the actual
cause of the death. He argued that the trial court erred in not
relying upon the opinion of DW1, who is far more experienced than
PW 17 and her evidence, unambiguously would show that the
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death of Thampachan is not homicidal. He contended that the
evidence of PW1 & PW2 cannot be relied on, since they are
relatives and interested witnesses and the testimony of these eye
witnesses are contradictory to the recitals in the FIS. He would
also submit that the prosecution has suppressed the incident
which took place in the bar, as deposed by PW15. Hence, he
prayed that his appeal may be allowed.
Contentions of the Public Prosecutor
19. The learned Public Prosecutor Adv.Neema argued that the
evidence of PW1 and PW2 regarding the events is credible and
cogent and the same is also corroborated by the evidence of PW3
coupled with Ext.P4, wherein the names of the accused and the
overt acts played by them finds a place. She submitted that the
evidence of PW17 coupled with Ext.P26 would clearly go to show
that the cause of death of Thampachan is due to injuries sustained
to his chest using MO1 to MO3 and the evidence of DW1 cannot be
relied upon since she had not seen the body or has conducted any
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examination upon it. She also relied on the decision in Nirmala v.
State of Kerala [ 2006 (1) KLT 761] in support of her
contentions. She further submitted that Ext.P1 FIS given by the
deceased himself can be treated as a dying declaration and be
acted upon to find the accused guilty.
Contentions of the victim/PW1.
20. Learned Counsel for PW1 Adv.Alexander George
contended that the accused have brutally attacked Thampachan
and the same is proved by the evidence of PW1 and PW2. He
argued that the medical evidence adduced by the prosecution by
examining PW3, PW4 and PW17 also confirms the fact that the
victim had died due to the attack made by the accused using MO1
to MO3. He submitted that the evidence of PW17 coupled with
Ext.P26 confirms the fact that the death of Thampachan is
homicide. Hence, he submitted that this is a fit case where the
accused can be convicted under Section 302 IPC.
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Evaluation of evidence
21. The first and foremost question to be considered in these
appeals is whether the death of Thampachan is homicidal or not.
While the prosecution heavily relies upon the evidence of PW17
and Ext.P26 to substantiate its case that the death of
Thampachan is homicide, the accused relies upon the evidence of
DW1 to contend otherwise.PW17 has opined that the death of
Thampachan was due to injuries sustained to his chest and that
injury Nos. 1 to 4 noted can be caused by MO1 to MO3. But in her
cross examination, she stated that she has not specifically
mentioned as to which of the injuries was the cause of death since
the death was due to injuries to chest and internal organs. It is
very pertinent to note that PW17 has not pinpointed any
substantial injuries being caused to any internal organs of the
deceased in the alleged attack. It is also pertinent to note that
even though PW17 has noted injury No.12, which is an infected
wound of 51 x 11 to 25 cm.on the back and outer aspect of right
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thigh, she has not verified the earlier treatment records of the
deceased regarding the said injury or its effects on the body of the
deceased at the time of her examination. Now coming to the
evidence of DW1, who is a vastly experienced person in Forensic
Medicine, it can be seen that she has categorically stated that the
death of Thampachan is due to natural causes and is not a
homicidal death. As regards the hemorrhage mentioned in injury
No.4, she would opine that there is no chance for air leakage or
blood leakage and the same itself will not cause death because
there is no tear of intercostal vessels or lungs. She would affirm
that injury No.4, even though is grievous, is not life threatening.
She further stated that injury No.12 is the cause of death in the
instant case and the same is a natural disease. According to her,
Myocardial infarction is the result of injury No.12 and massive
infarction of heart, kidneys and adrenals had happened in this
case in between 24 to 48 hours due to injury No.12 and hence, the
cause of death stated in Ext.P26 is not correct. It is to be taken
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note that there is no substantial challenge from the side of the
prosecution regarding the reasoning and opinion given by DW1.
Further, as stated earlier, the evidence of PW17 is totally silent
about injury No.12 and its effects/consequences on the deceased
and being so, the opinion of DW1 cannot be brushed aside by this
Court.The situation would have been different if PW17 had
analysed injury No.12 and has given an opinion ruling out the
possibility of death of the deceased due to it. The decision in
Nirmala‘s case (cited supra) relied on by the prosecution, hence,
will not be applicable to the facts and circumstances of this case. If
so, in the light of the evidence as discussed afore, we are of the
view that the prosecution has not adduced any convincing
evidence to prove that the death of Thampachan is homicidal.
22. Be that as it may, the materials on record reveal that
there is overwhelming evidence available to prove that the
accused together have brutally attacked deceased Thampachan
using MO1 to MO3 and has inflicted grievous hurt upon him. The
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evidence of PW1 shows that in the evening of 6/12/2013, the third
accused had come to her house and called Thampachan outside
and thereafter, had hit him on his back using a stick. When the
deceased fell down, the first and the second accused also beat him
using sticks and stamped him. When the relatives and locals
intervened, the accused left the place. Thereafter, they lifted
Thampachan, who was lying there with injuries and took him
inside the house. PW1 also positively identified the weapons and
the accused. On the next day morning, the first and the second
accused again physically assaulted the deceased by slapping him
and at about 9 am, Thampachan was taken to the hospital. It is to
be taken note that the evidence of PW1 is also supported by the
evidence of PW2, who had witnessed the incident. Moving further,
the evidence of PW3 reveals that on 7/12/2013 at about 11.40
am, she had examined the deceased, who had approached her
with a history of assault and has issued Ext.P4 wound certificate.
Her evidence reveals that the deceased himself has told her about
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the history and the alleged cause of injury, which she had
recorded in Ext.P4. It is pertinent to note that Ext.P4 mentions the
name of the accused, the date, time, place and briefly the manner
in which the deceased was assaulted. This piece of evidence also
lends much support and credence to the evidence of PW1 and PW2
regarding the incident. Most importantly, the evidence of PW4, the
doctor who had treated the deceased from 7/12/2013 to
11/12/2013, would go to show that the patient was having
complaint of pain on the left side of his chest and on examination,
she had suspected fracture in the fifth rib. It is also revealed that,
later on 11/12/2013, she had referred the deceased to the Medical
College Hospital suspecting pneumothorax and coronary artery
disease, where he died. The postmortem examination conducted
by PW17 reveals that the deceased had suffered fracture of third
to fifth ribs on the left side at the outer angle. The evidence of
PW17 further confirms the fact that injury Nos.1 to 4, which
includes the the fractures, as referred above, can be caused by
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using MO1 to MO3 sticks. In the light of the evidence, as discussed
afore, we have no doubt in our mind that the deceased has
sustained fractures on his ribs in the attack made by the accused
using MO1 to MO3.
23. The next question to be considered is whether MO1 to
MO3 can be classified as a “dangerous weapon”. What would
constitute a “dangerous weapon” would depend upon the facts of
each case and no generalisation can be made. The facts involved
in a particular case, depending upon various factors, like size,
sharpness, etc. would throw light on the question whether the
weapon was dangerous or deadly weapon or not. (See Mathai v.
State of Kerala [(2005) 3 SCC 260]. In the present case, MO1
to MO3 are ordinary wild sticks having a length of about 1 metre
without much girth and the same cannot be classified as a
dangerous weapon. If so, we are of the view that the offence,
which would be attracted in the present case, is under Section 325
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 27
2025:KER:18964
IPC.
24. As far as the offence under Section 447 is concerned, we
are of the considered view that there is no substantive evidence to
prove that accused Nos. 1 and 2 have trespassed into the property
of the deceased when they allegedly assaulted him on 7/12/2013.
The evidence of PW1 and PW2 are very vague on this aspect and
does not pinpoint the exact place where the incident had taken
place. Their evidence only show that when the deceased uttered
abusive words against accused 1 and 2, they had moved towards
him and has clouted him and nothing more. If so, we find that the
conviction of appellants 1 & 2/accused 1 & 2 under Section 447
IPC cannot be sustained.
25. The upshot of the afore discussions on evidence is that,
even though the accused cannot be found guilty of committing the
offence punishable under Section 304 Part-II IPC, they are liable to
be convicted and sentenced under Section 325 IPC. The conviction
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 28
2025:KER:18964
of appellants 1 & 2/accused 1 & 2 under Section 447 IPC also
cannot be sustained. As regards sentencing the appellants,
considering the gravity of offence, the manner in which it was
perpetrated, the weapon used, the injuries inflicted and the facts
and circumstances of this case, we are of the view that they can
be sentenced to undergo rigorous imprisonment for a period of
three years under Section 325 IPC.
In the result, the Criminal Appeal(V) No.26/2019 is dismissed
and Criminal Appeal No.1462/2018 is allowed in part as follows:
i) The conviction and sentence of the appellants/accused
under Section 304 Part-II IPC are set aside.
ii) Instead, the appellants/accused are convicted under
Section 325 IPC and are sentenced to undergo rigorous
imprisonment for a period of three years.
iii) The conviction and sentence passed against the appellants
Crl.Appeal No.1462/2018 & Crl.Appeal(V)No.26/2019 292025:KER:18964
1 & 2/accused 1 & 2 under Section 447 IPC are also set aside.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
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