Kerala High Court
Ashokan vs State Of Kerala on 19 November, 2012
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934
CRL.A.No. 717 of 2008 ( )
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SC.472/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA
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APPELLANT(S)/ACCUSED :-
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ASHOKAN, S/O. CHAKKAN,
THANNICHOTTIL HOUSE, TRIBAL SETTLEMENT COLONY
AYYAPPANKOVIL VILLAGE, KANJIYARKKARA.
BY ADV. SRI.S.RAJEEV
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM (CRIME NO.301/2004 OF THE
KATTAPPANA POLICE STATION).
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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M. SASIDHARAN NAMBIAR &
N.K.BALAKRISHNAN, JJ.
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Crl.A. No.717 of 2008
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Dated this the 19th day of November 2012
J U D G M E N T
M.Sasidharan Nambiar, J.
Appellant was convicted and sentenced to imprisonment for life and a fine of Rs.5,000/- and in default to Rigorous Imprisonment for six months for the offence under Section 302 of Indian Penal Code for murdering Soman, his brother- in-law.
2. Prosecution case is that, deceased Soman had taken away the rice purchased by the appellant earlier and on that account there was enmity between the appellant and deceased Soman. It was also alleged that appellant had impregnated the daughter of PW7 - Chellan, the elder brother of Soman and deceased Soman questioned the appellant on the said act and therefore, there was enmity. On the night of 10.9.2004 at about 7 PM, PW9 - Shekharan and PW10 - Monichan after seeing the movie reached Nirmala city. The accused also joined them. After purchasing some articles, Crl.A. No.717 of 2008 -: 2 :- while they were returning to their respective houses, deceased Soman also joined them. On the way when they reached near to the house of George, PW9 parted company and proceeded to the house of George to get a torch. PW10, deceased Soman and the appellant walked without waiting for PW9. While they were walking the appellant was intimidating deceased Soman due to the earlier incident of deceased Soman taking away the rice purchased by the appellant. When the appellant abused the deceased with filthy words, Soman slapped on the face of the appellant. Appellant then took out MO4 knife from his waist and stabbed Soman on his chest and abdomen. Soman sustained injuries and fell on the ground. PW10 who witnessed the incident, ran towards the house of George. By that time PW9 was returning from the house of George. PW10 disclosed to PW9 that appellant had stabbed Soman and his body is lying on the pathway. PWs.9 and 10 along with George reached there and on examination found that Soman had breathed his last. On the instructions of George, PW9 reached Kattappana Police Station and Crl.A. No.717 of 2008 -: 3 :- furnished Ext.P9, F.I.Statement. PW12, the Sub Inspector recorded Ext.P9 at 10.45 PM and based on it registered Crime 301/2004, under Ext.P11 F.I.R. PW12 proceeded to the scene of occurrence to guard the scene. While returning, PW12 found the appellant at Nirmala city. MO4 knife was with the appellant at that time. PW12 took the appellant to the police station and detained him there. PW15, the Circle Inspector of Police took over the investigation. He prepared Ext.P6 Inquest Report in the presence of PW5 and seized MOs.1 to 3, the dresses found on the body of the deceased. He submitted the necessary requisition and PW16, the Assistant Surgeon conducted the autopsy and prepared Ext.P16 postmortem certificate with the finding that death was caused due to the penetrating injury sustained on the left ventricle. As the scene of occurrence was described in Ext.P6 Inquest Report, no separate scene mahazar was prepared. PW15 questioned the witnesses and produced material objects before the court and submitted Ext.P15 forwarding note to get the material objects examined at the laboratory. PW8, the successor Crl.A. No.717 of 2008 -: 4 :- Circle Inspector was took over the investigation and submitted Ext.P7 report showing the address of the appellant. After getting Ext.P8 certificate of chemical analysis from the laboratory, PW8 laid the final report before Judicial First Class Magistrate, Kattappana, who committed the case to Sessions Court, Thodupuzha. The learned Sessions Judge made over the case to Additional Sessions Court for trial. The appellant was defended by a counsel of choice. When the learned Sessions Judge framed charge for the offence under Section 302 of Indian Penal Code and read it over to the appellant, appellant pleaded not guilty. Prosecution examined 16 witnesses, marked 16 exhibits and identified 6 material objects. At the time of cross examination of PWs.1, 10 and 13, Exts.D1 to D3 portions of their statements recorded under Section 161 of Code of Criminal Procedure were confronted and marked. After closing the prosecution evidence, appellant was questioned under Section 313 of Code of Criminal Procedure. The appellant denied the incriminating circumstances. He stated that when he was sleeping in his Crl.A. No.717 of 2008 -: 5 :- house, PW15 reached there and arrested him. He also stated that MO4 knife did not belong to him. Though learned Sessions Judge called upon the appellant to adduce defence evidence, he did not adduce any evidence.
3. Learned Additional Sessions Judge on the evidence of PWs.9 and 10 found that it was the appellant who inflicted the injuries on deceased Soman. Based on the evidence of PW16 and Ext.P16 it was found that the death of Soman was caused by the injuries inflicted on his chest and those injuries are sufficient in the ordinary course of nature to cause death. Learned Sessions Judge on the evidence of PW13, the wife of the deceased found that appellant had the motive to murder Soman. It was also found that the injuries were inflicted with the intention to cause his death and therefore, Clause Firstly of Section 300 IPC is attracted and none of the Exceptions to Section 300 IPC is attracted. The appellant was therefore, convicted and sentenced for the offence under Section 302 of IPC as stated earlier. It is challenged in this appeal.
4. Learned counsel appearing for the appellant and Crl.A. No.717 of 2008 -: 6 :- the learned Public Prosecutor heard.
5. The argument of the learned counsel appearing for the appellant is that the only eye witness is PW10 as PW9 was not present at the time when deceased Soman sustained the injuries. It was argued that the evidence of PW10 should not have been relied on by the learned Additional Sessions Judge as it is clear from his evidence that he did not witness the incident. It was pointed out that the evidence of PW10 shows that after sustaining the injuries deceased Soman called PW10 stating that appellant stabbed him and if PW10 was an eye witness to the incident the injured would not have cried asking PW10 to reach him by running and it is clear that PW10 did not witness the actual incident. The learned counsel argued that even if the version of PW10 is believed, there was a quarrel between the appellant and the deceased and it started when deceased Soman slapped on the face of the appellant and appellant in the sudden quarrel, without pre- meditation and in the heat of passion took the knife which was with him and inflicted the injuries and in any case Crl.A. No.717 of 2008 -: 7 :- Exception 4 of Section 300 IPC applies and therefore, the conviction of the appellant for the offence under Section 302 of IPC is not sustainable. Learned counsel argued that at the most the offence is punishable only under Section 304 of IPC.
6. Learned Public Prosecutor submitted that the evidence of PWs.6 and 7, the brothers of deceased Soman establish that the daughter of PW7 had given birth to a child before her marriage and appellant was suspected to be the person responsible for it and deceased Soman had questioned the appellant and therefore, appellant had enmity against deceased Soman. Learned Public Prosecutor also pointed out that the evidence of PW13, the wife of deceased Soman establish that though Soman had carried the rice purchased by the appellant by mistake, on the impression that it was the rice purchased by PW13, appellant came to their house and wanted the rice to be returned and even though Soman had promised to give equal rice or money, he was not prepared to receive it and returned holding out a threat and the incident occurred due to the said enmity. Learned Public Prosecutor Crl.A. No.717 of 2008 -: 8 :- also pointed out that the evidence of PW10 establish that appellant inflicted the injuries on Soman with the intention to cause his death and it was not in a sudden fight and in any case it was not without premeditation and therefore, Exception 4 is not attracted and when the appellant inflicted two fatal injuries on the chest, it is clear that the injuries were inflicted with the intention to cause death and therefore, there is no reason to interfere with the conviction.
7. The fact that deceased Soman sustained the injuries on 10.9.2004 at about 7.45 PM, on the way leading from the public road towards the east to Anchuruli, at Vattakkanam was not disputed at the time of recording the evidence. The evidence of PW16, the Assistant Surgeon, District Hospital, Idukki with Ext.P16 postmortem certificate establish that at the time of autopsy the following anti-mortem injuries were noted :-
"1. Incised wound 2 = c.m. x 1 c.m. deep to bone, 7 c.m. from left nipple at 5 'O' clock.
2. Incised wound 8 c.m. x 2 = c.m., 9 c.m. from umbilicus at 4 'O' clock position. Small intestine Crl.A. No.717 of 2008 -: 9 :- coil (loops) extruding out with incised wound over the bowels.
3. Incised would 1 c.m. x 1 = c.m. bone deep 4 cms below posterior axillary fold left.
4. Abrasion = c.m., 3 c.m. to right of midline over back.
5. Abrasion < c.m., 9 c.m. below injury (4) in the midline."
The first injury had resulted in the following internal injuries :-
1. It penetrated into the thoracic cavity at the 4th left intercostal space.
2. Haemothorax - clots and blood in the thoracic cavity.
3. Injury over pericardial sac left side, with blood and clots in pericardial cavity.
4. Penetrated into the cardiac apex into left ventricle and, resulted in an incised wound 2 x 1 c.m. and left ventricle was empty.
The evidence of PW16 with Ext.P16 conclusively establish that the said injury inflicted on the chest is sufficient in the ordinary course of nature to cause death. In cross examination, it was brought out that the said injury will cause immediate death. Therefore, prosecution has conclusively Crl.A. No.717 of 2008 -: 10 :- established that death of Soman was caused by the penetrating injury sustained on his chest and also that the said injury was sufficient in the ordinary course of nature to cause death.
8. The evidence of PWs.9 and 10 were relied on by the learned Sessions Judge to find that it was the appellant who inflicted those injuries which caused the death. The evidence of PW9 corroborated by PW10 established that both of them had gone for a movie and thereafter reached Nirmala city by bus at about 7 PM. Though PW10 was cross examined on this aspect and it was suggested that appellant was not there with them while they were proceeding from Nirmala city towards Anchuruli, when PW1 was cross examined his evidence that the appellant as well as the deceased Soman were there along with PWs.9 and 10 was not challenged. In such circumstances, we find no hesitation to believe that it was the appellant, deceased, PWs.9 and 10 who together walked from Nirmala city towards Anchuruli along that way. The evidence of PW9 that he parted with others near to the house of George Crl.A. No.717 of 2008 -: 11 :- at Vattakkanam, was corroborated by the evidence of PW10. The evidence of PWs.9 and 10 establish that PW9 left others and went to the house of George to see him and to get a torch light, as it was night. The evidence of PWs.9 and 10 establish that after PW9 left them, PW10 along with the appellant and the deceased walked towards the east along that way. Though PW9 did not witness the incident thereafter, his evidence shows that while returning from the house of George, PW10 came running along that way and informed him that appellant stabbed deceased Soman and his body is lying on the way. It is the evidence of PW9 that he along with PW10 reached near the place where the body was lying and found that Soman had already breathed his last. The evidence of PW9 is fully corroborated by the evidence of PW10 on these aspects. PW10 deposed that after the incident he rushed towards the house of George and on the way found PW9 and George and informed them and they together reached the scene of occurrence and on examination found that Soman had already dead. We have scrutinised the Crl.A. No.717 of 2008 -: 12 :- evidence of PWs.9 and 10 minutely and find no reason to reject their evidence on these aspects.
9. The evidence of PW10 establish that at the time when Soman sustained the injuries, apart from PW10, only the appellant and the deceased were there. Therefore, only PW10 could unveil the true origin and genesis of the incident. PW10 is admittedly a close relative of both the appellant and the deceased Soman. Appellant is the brother-in-law of deceased Soman. The mother of PW10 and the wife of the appellant are sisters. Deceased Soman is an uncle of PW10. In such circumstances, when nothing was pointed why PW10 has to falsely depose against the appellant, we find no reason to disbelieve the evidence of PW10 who is equally related to the appellant and the deceased.
10. The evidence of PW10 establish that after PW9 left them, he along with the appellant and the deceased walked towards the eastern side along that way and while walking appellant was abusing deceased Soman for the reason that he had taken away the rice purchased by the appellant. The Crl.A. No.717 of 2008 -: 13 :- evidence of PW10 further show that when appellant abused the deceased using obscene words, deceased Soman slapped on the face of the appellant. According to the evidence of PW10 it is at that point appellant took out MO4 knife from his waist and inflicted those injuries.
11. Learned counsel appearing for the appellant vehemently argued that if the evidence of PW10 that he witnessed the incident and PW10 was near to the place where Soman sustained the injuries is true, Soman will not cry calling PW10 to reach by running and it establish that PW10 was not present there at that time. Learned counsel also argued that when the statement of PW10 was recorded by PW15, the Circle Inspector under Section 161 of Cr.P.C., as deposed by PW15, PW10 did not claim that he found the appellant inflicting injuries on the deceased. It is therefore argued that the evidence of PW10 that he witnessed the actual stabbing cannot be believed. We have scrutinised the evidence of PW10. If PW10 was walking along with the deceased and the appellant and then the incident occurred, Crl.A. No.717 of 2008 -: 14 :- PW10 had every chance to witness the incident. The evidence of PW10 establish that while walking, the appellant intimidated Soman and Soman slapped on the face of the appellant and it was at that point appellant took out the knife and stabbed Soman. The evidence of PW10 establish that he was standing near to the appellant and the deceased at that time. Appellant cannot be held responsible for the utterance made by the deceased on sustaining the injuries. Therefore, for the reason that the injured on sustaining the injuries called PW10, who was standing near to him, to reach by running, we cannot hold that PW10 was not present there or did not witness the incident. The evidence of PW10 establish that he was present and witnessed the appellant stabbing the deceased. It is true that PW10 did not intervene. But PW10 had explained the reason stating that he was afraid that if he intervenes injuries would be inflicted on him. As the appellant was armed with MO4 knife, it cannot be stated that the reason shown for the noninterference by PW10 is not believable. In such circumstances, on the evidence we have Crl.A. No.717 of 2008 -: 15 :- no hesitation to hold that PW10 was present when the deceased sustained injuries and it was the appellant who inflicted the injuries on the chest and abdomen of deceased Soman and caused his death.
12. Then the question is what is the offence committed. Though the learned Additional Sessions Judge found that Clause Firstly of Section 300 IPC is attracted on the evidence, we cannot agree. True the evidence of PW13 shows that there was an earlier incident wherein Soman by mistake had taken away the rice purchased by the appellant and appellant questioned him on reaching the house of Soman and though Soman offered to pay the price or to substitute the rice, appellant was not agreeable and he returned holding out a threat. On that ground it cannot be found that appellant had the intention to cause his death. If the appellant had an intention to murder deceased Soman, who is none other than his own brother-in-law, it is not known why the appellant did not attack Soman or inflict injuries when they were at Nirmala city or why the appellant had waited till PW9 Crl.A. No.717 of 2008 -: 16 :- deviated to the house of George. If the intention of the appellant is to commit murder, in the ordinary course he would have chosen a lonely place and would have waited till PW10 leaves them. From the evidence of PW10 it is clear that appellant inflicted the injuries only after Soman slapped on his face. In such circumstances, on the evidence we cannot agree with the finding that Clause Firstly of Section 300 IPC is attracted.
13. As stated earlier, the evidence of PW16 conclusively prove that death was caused by the penetrating injury inflicted on the chest, which is sufficient in the ordinary course of nature to cause death. The question in such circumstances is, whether that injury was inflicted accidentally or with the intention to inflict that particular injury. On the evidence, we have no hesitation to hold that it was not accidentally caused and that injury was inflicted on that particular part of the body with the intention to inflict it. It is therefore clear that Clause Thirdly of Section 300 IPC squarely applies to the facts of the case. Therefore, if none of Crl.A. No.717 of 2008 -: 17 :- the Exceptions to Section 300 IPC applies, the offence would come under Section 300 IPC.
14. The question then is whether any of the Exceptions provided under Section 300 IPC is applicable. The argument of the learned counsel for the appellant is that Exception 4 is attracted. Exception 4 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or an unusual manner. The explanation provided would make it absolutely clear that it is immaterial in such cases which party offers the provocation or commits the first assault. The ingredients to invoke Exception 4 are :-
1.It was a sudden fight
2.There was no premeditation
3.The act was done in a heat of passion and,
4.The assailant had not taken any undue advantage or acted in a cruel manner.
The fact that appellant did not adduce any defence evidence will not disable him to claim the protection of the exception, Crl.A. No.717 of 2008 -: 18 :- provided, there is sufficient evidence to attract the Exception. The only evidence is on origin and genesis of the incident is that of PW10. The evidence of PW10 establish that appellant is having the habit of carrying MO4 knife with him. In chief examination itself PW10 deposed that he had seen MO4 knife with the appellant previously when they had gone for work together. The evidence of PW10 establish that after the appellant abused Soman with obscene words, Soman slapped on the face of the appellant. It is thereafter the appellant suddenly took out MO4 knife and inflicted the injuries on the deceased. Though there was previous enmity, the evidence did not show that the appellant either kept MO4 knife to cause the death of Soman or attacked Soman because of any premeditation. On the other hand, from the evidence it is clear that appellant took out MO4 knife and inflicted the injuries on the sudden quarrel. It was unpremeditated and in the heat of anger. True appellant had not stopped after inflicting one injury and also inflicted two more injuries. But the number of injuries are not decisive to determine whether Crl.A. No.717 of 2008 -: 19 :- an accused is entitled to the Exception 4 of Section 300 IPC.
15. Honourable Supreme Court in Surinder Kumar v. Union Territory, Chandigarh [1989 SCC (Crl.) 348] held :-
"The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."
Honourable Supreme Court in Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327] considered this aspect and held :-
"To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self- Crl.A. No.717 of 2008 -: 20 :- control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normaley and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception."
In the light of the settled position, it is clear that the appellant inflicted injuries on Soman and caused his death without premeditation in a sudden fight, in the heat of passion, upon a sudden quarrel and he had not taken any undue advantage and did not act in a cruel or unusual manner. There was no time gap to subside the passion and the injuries were inflicted immediately. In such circumstances, Exception 4 of Section 300 IPC is attracted. Therefore the offence committed does not come under Section 300 IPC, but only under Section 299 of IPC.
Crl.A. No.717 of 2008 -: 21 :-
16. We have already found that the injury inflicted on the chest by the appellant is sufficient in the ordinary course of nature to cause death. In such circumstances, the offence is punishable under Part 1 of 304 of IPC. The only question is what is the sentence to be awarded. Considering all the relevant aspects, we find that interest of justice will be met if the appellant is sentenced to Rigorous Imprisonment for ten years (10 years) and a fine of Rs.5,000/- (Rupees Five Thousand only) and in default Rigorous Imprisonment for one year.
17. The appeal is allowed in part. The conviction of the appellant for the offence under Section 302 IPC in S.C.No.472 of 2005 on the file of IVth Addl. Sessions Judge (Adhoc-I), Thodupuzha is set aside. The appellant is found not guilty of the said offence and is acquitted of the said offence. The appellant is found guilty and is convicted and sentenced to Rigorous Imprisonment for 10 (ten) years and a fine of Rs.5,000/- (Rupees Five Thousand only) and in default Rigorous Imprisonment for one year for the offence, under Crl.A. No.717 of 2008 -: 22 :- Section 304 Part 1 of IPC. The appellant is entitled to set off as provided under Sec.428 of Code of Criminal Procedure for the period he has been in custody during investigation and trial.
M. SASIDHARAN NAMBIAR, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
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