RAMAKRISHNA PILLA Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused No.1 came up with this appeal against the judgment of conviction and the order of sentence under Section 302 IPC in Sessions Case No.1253/2014 of the IInd Additional Sessions Judge, Kollam.

(2.) His wife, one Thankamani Amma, was also found guilty for the offence punishable under Section 323 IPC and convicted thereunder. The alleged incident happened on the courtyard and in the house of both accused Nos.1 and 2. The victim was passing through the pathway lying north-south leading to the public road on the southern side, at about 2.00 p.m. on 06.07.2014. The accused, on seeing the deceased, took a brick and pelted against him and hit on his forehead. This was witnessed by his wife, the second accused, who was standing in front of the house. The deceased then proceeded towards her and had shown his injury. The second accused took him into the house followed by accused No.1. The accused No.1 beat on his head with the keel portion of a kadjan leaf and stamped on his chest several times, then dragged him out of the house by holding his legs and again stamped on his abdomen and chest with his leg. Then he took a bucket of water from the nearby well and poured it over his body by uttering filthy language against him. On getting information, the Police came to the place and removed the victim to the hospital, but on the way he succumbed to the injuries.

(3.) Four eye witnesses were examined by the prosecution. FIS was given by 3.25 p.m. on the same day by the son of the deceased, who was examined as PW1. He had also given a second statement. A slight difference occurred in the FIS from that of the statement recorded under Section 161 Cr.P.C. subsequently challenging the very presence of PW1 in the occurrence place was brought to the notice of this Court. PW1 had narrated the entire incident in its sequence. As discussed earlier, the main challenge is based on the above said discrepancy in the FIS in which he had given statement to the effect that he had seen accused No.1 inflicting injuries on the victim by using a weapon. But, no weapon other than the stem of a kadjan leaf was used during the course of attack within the house of both the accused. On the other hand, FIS was seen given within few hours after the alleged incident narrating the entire sequence of events with its precision including what actually happened inside the house of accused Nos.1 and 2. He had seen the attack on the victim through the window of the said house. According to him, accused No.1 hit on the victim by using the keel (stem portion) of a kadjan leaf and stamped over his chest several times, besides beating on his body several times. According to PW1, accused No.1 is a known criminal in the locality and all the neighbours were under fear as he is a person used to pick up quarrel frequently. What is witnessed by him is really an indiscriminate attack on his father by accused No.1 within the house having no much light. PW1 was actually in a frightened stage on seeing the alleged incident. He had seen the incident through the window of the said house. The nature of attack on the victim, being an indiscriminate one, by using a kadjan leaf stem and by stamping over his body over and again and beating with his hand, when visualized it is quite probable such a misconception that the accused No.1 had also used weapon for the commission of offence, especially when the incident happened within the house having no much light and when viewed in the given circumstance, the said misconception cannot be brought under the purview of a material defect, on the other hand, it is so probable. While visualizing the situation with the aid of attending circumstances, it is quite possible to have some misconception regarding the nature of attack unleashed and hence the same cannot be treated as a material deviation affecting the genuineness of the FIR. The nature and age of the first informant, his relationship with the victim, the gravity of the offence committed, the time gap in which the first information was given etc. are relevant factors to be taken into consideration in order to test the genuineness of the FIS. It may have its own infirmities unless it is a pre-arranged script. FIS, in fact, being the first version given by the son of the victim, who might be in a frightened stage on seeing the attack on his father, would be relevant. The incident happened inside the house wherein there may not be sufficient light would also another fact to be taken into consideration. We are of the view that the misconception of user of a weapon during the course of attack against the victim is not so material and it is quite probable in the attending circumstance under which the alleged incident happened and the nature of place where the incident was happened i.e. inside the house wherein there may not be sufficient light to see with its precision what actually happened. On the other hand, he had identified the kadjan stem used for the commission of offence and narrated each and every sequence of incident. The FIS is seen given within few hours and as such there cannot be any embellishment at the time of giving FIS. The difference is quite natural and probable in the given circumstance. The oral testimony of PW1, as to what actually he had seen on the alleged date of commission of offence, hence inspires confidence.