Kerala High Court
Pious @ Monai vs State Of Kerala
Author: P. Bhavadasan
Bench: P. Bhavadasan, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P. BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937
CRL.A.No. 1200 of 2011 ( )
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AGAINST THE JUDGMENT IN SC 363/2008 of II ADDITIONAL SESSIONS COURT/
SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
APPELLANT(S)/ACCUSED:
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PIOUS @ MONAI, S/O. JOSEPH
KIZHAKKETHOTUNGAL VEETTIL,
THEKKAMALA KARA,, PERUVANTHANAM VILLAGE.
BY ADVS. SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENT(S)/COMPLAINANT:
------------------------------------------------
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. V.H. JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ds
P.BHAVADASAN
&
- - - - - -RAJA - - - - - - - - - - - - - - - - - -
VIJAYARAGHAVAN V., JJ
- -Dated - - - -No.- - - - - - - - - - - - - -
-Crl.A.
-
1200 of 2011
- - -this the-09th day of March, 2016
J U D G M E N T
P. Bhavadasan, J.
The accused was put in the dock and tried for the offence punishable under Section 302 of IPC. He was found guilty. He was therefore convicted and sentenced to suffer imprisonment for life. It is distressing to note that even though sentence contemplated under Section 302 includes the fine, no fine has been imposed. Set off was allowed subject to the orders to be passed by the competent authority under Sections 432 or 433 of Cr.P.C.
2. The prosecution story runs thus:
The deceased was a contractor by profession and PWs 1 and 2 were his employees at the relevant time. He had Crl.A. No. 1200 of 2011 -2- taken the work of laying a road called Thekkemala-Kariyoram road. On the date of incident, the deceased had gone with his jeep with the trailer attached to the same to transport the stones which he had collected during the construction of the road and heaped it at a particular place. While he was transporting the stones to his trailer, the accused reached the place and questioned his act. The deceased is said to have replied that stones belonged to him and he is entitled to take away the same. The accused, agitated by the said words of the deceased, first assaulted him on his chin. When the deceased was about to get out of the jeep, the accused with the knife which he carried with him for tapping rubber inflicted an injury on the neck of the deceased. PWs 1 and 2 who were standing nearby, raised cries which called the attention of others and which made the accused to run away through the rubber estate belonging to him. Though the deceased was initially attempted to be taken to the hospital in the jeep in Crl.A. No. 1200 of 2011 -3- which trailer was attached, finding that it may too late to reach the hospital, he was transferred to a jeep which had come along the way and taken to the hospital. He was taken to the Mundakkayam Medical Trust Hospital where the doctor on examination pronounced the deceased dead.
3. PW1 who had occasion to witness the incident laid Ext.P1, First Information Statement quite promptly. It was recorded by PW9, the Sub Inspector of Police, who, on that basis, registered crime as per Ext.P7, FIR. Under instruction from PW10, the Circle Inspector of Police, who had taken over investigation, he searched the house of the accused as per Ext.P3 search list and recovered MO1, the weapon of offence. The investigation was carried on by PW10. He went to the place where body had been retained and conducted inquest over the body of the deceased Appachan and prepared Ext.P2 inquest report. He then went to the place of occurrence and prepared Ext.P8 scene mahazar. He recovered the jeep which Crl.A. No. 1200 of 2011 -4- was found at the place of incident and he also collected blood stains from the seats which were found on the jeep and had them sent for chemical analysis. The clothes and the watch found on the body of the deceased were taken as MOs 4 to 8. He had taken the statements of witnesses and had prepared a forwarding note to send the articles which were seized during investigation to court for forensic examination. The accused was arrested on 30.9.2005. The investigation was completed and charge was laid before court by PW10.
4. The court before which the final report was laid took cognizance of the offence and finding the offence to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Thodupuzha under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to II Additional Sessions Court/Special court for NDPS Act cases, Thodupuzha for trial and disposal. Crl.A. No. 1200 of 2011 -5-
5. The latter court, on receipt of records and appearance of the accused before the said court, framed charge for the offence punishable under Section 302 of IPC.
6. To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 10 and had Exts.P1 to P10 marked. MOs 1 to 12 were got identified and marked. During the examination of the prosecution witnesses, the defence had Exts. D1 and D2 marked, which are being the inconsistent version of the witnesses contained in statement under Section 161 of Cr.P.C. given to the Investigating Officer.
7. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C to enable him to explain the incriminating circumstances brought out in evidence against him. He not only denied the incriminating circumstances, but maintained that he is innocent. Apart from saying so, he stated as follows: Nediyoram-Kariyoram road Crl.A. No. 1200 of 2011 -6- falling within Peruvanthanam Panchayath was built under the S.G.R.Y. Scheme. The accused possessed properties on either side of the road. He claimed that there was already a small lane through his property which was widened and converted into a road. The accused claimed that he was threatened by PW5 that the road should have a width of 8 metres and for that purpose, the property belonging to the accused would be utilized. The accused would claim that the deceased had nothing to do with the construction of the road. He further stated that in respect of all those persons who had opposed the widening of the road making use of the property belonged to them, PW5 put up the road and services of the deceased were utilized by PW5 for the said activities. He would say that he owned a Maruthi Van and he had constructed a road for taking the same to his house. In 2003, PW5 and his companions, under the guise of widening the road, destroyed the way put up by the accused to take his vehicle through his Crl.A. No. 1200 of 2011 -7- property and put up a road having a width of 12 metres. He would say that in that process, the stones, which were pulled down by PW5, were stacked nearby the road side and that he had kept it in his property. On the date of incident, according to the accused, the deceased had come with a few others and removed a portion of stones which were in his possession. When he attempted to repeat the same, the accused happened to see the activities carried on by the deceased. He would say that he staked claim to the stones that were being removed by the deceased, who is said to have replied that even if the stones belonged to anyone else, he was bent upon doing the same thing and that he was challenged by the deceased. He would further state that he was standing in his property when he questioned the act of the deceased. Further claim of the accused is that he was pulled down and in that process, the deceased happened to fall on the knife which he was carrying for tapping the rubber in his property. According to him, PWs Crl.A. No. 1200 of 2011 -8- 1, 2 and 3 are planted witnesses and they have not seen the incident. His further grievance is that after two days of the incident, his house was set on fire and that he had to shift his residence from that place selling his property for small price.
8. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined DW1 and had Exts. D3 to D10 marked.
9. The court below apparently, impressed by the evidence of PWs 1, 2 and 3, who claimed to be the occurrence witnesses and also taken along with the forensic report, namely, Ext.P9, came to the irresistible conclusion that the prosecution has succeeded in establishing that it was the accused who had inflicted the fatal injury which led to the death of Appachan, the deceased. The court below found no mitigating circumstances to hold the accused not guilty of the offence punishable under Section 302 of IPC and conviction Crl.A. No. 1200 of 2011 -9- and sentence as already mentioned followed.
10. Assailing the conviction and sentence, the learned counsel appearing for the appellant contended that the court below has not applied its mind to the facts of the case and has acted mechanically by accepting the evidence of PWs 1, 2 and 3. The presence of PW3, when compared with the evidence of PW 5 and PWs 1 and 2 is extremely doubtful and the court below has not looked into this aspect at all. It is also contended that Exts.D1 and D2, the relevant portions of 161 statements of PWs 2 and 5 respectively, show that they are not witnesses of truth and they cannot be believed. In other words, they are not creditworthy witnesses. The court below has not attempted to find out if Exts. D1 and D2 had any bearing on the evidence furnished by PWs 2 and 5.
11. The learned counsel then went on to point out that the stones, which were attempted to be removed by the deceased, actually belonged to the accused and when that was Crl.A. No. 1200 of 2011 -10- being forcibly or otherwise being removed, he had interfered to protect his property. It is also contended that there was a threat to his life thereby the appellant was entitled to exercise private defence both in respect of his life and his property. It is also contended that it is also a case where there was a sudden fight or there was sudden provocation which led the accused to act as he did and there was no premeditation or intention to do away with the deceased. The entire incident happened on the spur of the moment or in a flash and there was no time for the accused to think about the consequence nor could he said to have acted with the necessary intention.
12. It is also contended that at any rate, there was only one stab injury inflicted on the body of the deceased and it could not be said that in the facts and circumstances of the case, the accused acted with the necessary intention to cause the death nor could it be said that he knew that the consequences of his act and had the necessary knowledge that Crl.A. No. 1200 of 2011 -11- injury is sufficient in the ordinary course of nature to cause death of the injured.
13. In other words, the contention is that even assuming all what the prosecution says is true, the offence can fall under Part II of Section 304 of IPC. In support of his contention, the learned counsel relied on the decisions reported in Jacob @ Jaimon v. State of Kerala (2012 KHC 313), Abdul Majeed v. State of Kerala (2016 Crl.L.J. 57), Ramakrishnan Unnithan v. State of Kerala (1999 (2) KLT 129), Pathubha Govindji Rathod and Another v. State of Gujarat ((2015) 4 SCC 363), Paramjeet Singh Alias Pamma v. State of Uttarakhand ((2010) 10 SCC 439) and Darshan Singh v. State of Punjab and Another ((2010) 2 SCC 333).
14. It was finally pointed out that as far as the question under Section 313 Cr.P.C. is concerned, several incriminating circumstances which have been relied on by the court below, to be more precise, according to the learned Crl.A. No. 1200 of 2011 -12- counsel, the report of the FSL and also the evidence of PWs 7 to 10 had not been put to the accused. The court below therefore could not have relied on the same. It is therefore contended that the conviction and sentence are vitiated.
15. Per contra, the learned Public Prosecutor contended that this is an open and shut case and there is nothing made out to interfere with the finding of the court below. The evidence of PWs 1 to 3 are sufficient to show that the act was committed by the accused and that in the nature of the act proved to have been committed by him, it could not be said that he had neither intended nor did he have the knowledge that the injury caused by him would result in the death of the person concerned. It was contended on behalf of the State that a person should be deemed to have knowledge about the consequences of his act. In the case on hand, the deceased was collecting stones which were lying by the side of the road and even though the accused claimed that the stones Crl.A. No. 1200 of 2011 -13- belonged to him, there is not an iota of evidence to prove the said claim made by the accused. He had simply picked up a quarrel with the deceased and in the process, unarmed and undefended deceased was attacked with the dangerous weapon which fell on the vital part of the body leading to the death of the deceased.
16. Of course, the learned Public Prosecutor did point out that there are minor inconsistencies and contradictions in the evidence of PWs 1, 2 and 3, but they are totally insufficient to justify a conclusion that these witnesses were not speaking the truth. Such minor inconsistencies and contradictions are only natural and can occur by passage of time. It will be imprudent on the part of the court to insist for a photographic memory or mathematical precision in the deposition. It was also pointed out that Exts. D1 and D2, the two contradicting statements brought out by the defence cannot by themselves be sufficient to throw suspicion on the Crl.A. No. 1200 of 2011 -14- veracity of the evidence furnished by PWs 2 and 5, as it has no bearing on the issue involved in the case.
17. The learned Public Prosecutor pointed out that none of the defence now set up by the accused is available to him. The contention that the single blow theory should automatically lead to the inference that the offence is Part II of Section of 304 IPC, stands exploded by the subsequent decision of the Apex Court. According to the learned Public Prosecutor, the question is not whether single blow or series of blows were inflicted, but the issue will have to be determined with reference to the nature of weapon used, place of injury, force with which it was inflicted, the nature of injury etc. Viewed from that angle, it is contended that a dangerous weapon was used and injury was inflicted on the vital part of the body with tremendous force that the accused should, at any rate, be credited with the knowledge that his act was likely to cause the death of the deceased.
Crl.A. No. 1200 of 2011 -15-
18. The learned Public Prosecutor pointed out that the accused is not sure about the defence taken at all. He attributes first lack of intention, lack of knowledge and then goes on for private defence and then ends up by saying that the act was on sudden provocation. None of the ingredients sufficient to attract the provisions of private defence or grave and sudden provocation scaling down the act committed by the accused are available in the case on hand and the accused is not entitled for exception. The court below has considered the evidence of PWs 1 to 3 in considerable detail and there is no reason to conclude that the finding of the court below are not in accordance with law. In short, the contention is that there is no merit in the appeal and the same is only to be dismissed.
19. Of course, the first question that arises for consideration is what is the cause of death of Appachan alias Devasia. That he died as a result of the injury suffered by him Crl.A. No. 1200 of 2011 -16- is not a fact in dispute. The evidence of PWs 1, 2 and 3 would show that they had occasion to see the incident and the infliction of injury and the court below is justified in relying on their evidence. Prima facie, they say that they had occasion to see the infliction of injury by the accused. PW10 had conducted inquest over the body of the deceased and furnished Ext.P2 inquest report. The inquest report narrates the injuries found on the body of the deceased. PW6 had conducted the autopsy and had prepared Ext.P4 report. Ext.P4 shows the following ante-mortem injuries:
"1. Curved Incised wound 9x0.6cm to 1.8cm with its convexity directed towards right involving the right side of chin and adjoining part of front of neck. Its upper outer and being 3cm below lower lip, and 2cm outer to midline, and lower inner and was 5.5cm behind the chin in midline. Cutting the lamina of right thyroid cartilage, vocal cord, transfixed the back wall of pharynx and severed the left Jugular vein and Crl.A. No. 1200 of 2011 -17- common carotid artery. The adjoining strap muscles at the left side of neck were partially cut, with haematoma of size 8x3x2cm at the left side of root of neck. The would track was directed obliquely downwards backwards and to left for a depth of 11cm.
2. Abrasion 2x0.5cm on the front of right knee.
3. Abrasion 0.2x0.2cm on the top of right third toe."
20. The opinion of the cause of death is the injury suffered on the neck. PW6 in his evidence would depose that injury No.1 which is the cause of death is the fatal injury and that is sufficient in the ordinary course of nature to cause death of a person. He would further say that the said injury could be inflicted by using the weapon like MO1. He attributes injury Nos.2 and 3 possible on that part of the body coming into contact with a rough surface.
21. The cumulative effect of the above items of evidence is that conclusion is irresistible that Appachan had Crl.A. No. 1200 of 2011 -18- died as a result of the inflicted injury or in other words, it is a clear case of homicidal.
22. The next question that arises for consideration is whether the prosecution has succeeded in showing that it was the accused who was responsible for causing the fatal injury on the deceased. For this, the prosecution mainly relies on the evidence of PWs 1 to 3. Among them, PWs 1 and 2 were the employees of the deceased and PW3 was the employee of the accused himself. The court below has considered their evidence in considerable detail and has found their evidence to be acceptable. However, being an Appellate Court, we shall independently consider the evidence of PWs 1 to 3 to ascertain whether their evidence inspires confidence in the mind of court or whether it is open to serious doubt as contended by the learned counsel for the appellant.
23. As already stated, PWs 1 and 2 were the employees of the deceased. On the date of incident, both of Crl.A. No. 1200 of 2011 -19- them say that they had gone along with the accused to collect the stones which were lying on both sides of the road. Both of them say that the deceased had gone with his jeep with trailer a attached to the same. PW1 would say that the stones were being carried in the trailer attached to the jeep and were to be unloaded in a different place. One such load has already been taken. While the second load was being carried on, the accused, who was tapping rubber in his property came down to the place and questioned the act of the deceased. He questioned the act of the deceased by asking him who had permitted him to carry away the stones. The deceased is said to have replied that stones belonged to him and he needs nobody's permission to remove them. To that the accused replied that he has been holding the field for a long time and tapped on the chin of the deceased. While the deceased was about to come out of the jeep, it is stated by PW1 that the accused inflicted a blow on the neck of the deceased using Crl.A. No. 1200 of 2011 -20- MO1 weapon. Seeing the incident, he would say that he and PW2 namely, Omana, raised cries which brought the others to the scene and initially the deceased was taken in the jeep with trailer attached to it to the hospital and finding that it was not sufficient to take the deceased in that vehicle, he was transferred to a jeep which had come along the way and was taken to the hospital. In the hospital, after examination, he was pronounced dead.
24. The evidence of PW2 is almost similar to the version given by PW1 except for the minor aspects and it is unnecessary to extract the evidence of PW2 therefore in detail since the version is almost uniform and consistent as that of PW1.
25. PW3, as already noticed, is claimed to be an employee of the accused himself. He would say that he was also tapping rubber trees in the property of the accused when the incident occurred. He was about 20 metres away from the Crl.A. No. 1200 of 2011 -21- place of occurrence at the relevant time. He then says that he had occasion to see the deceased coming along with three employees and he parked his jeep on the eastern side of the road. The deceased remained in the driver's seat. He would say that seeing them, the accused walked towards Appachan and was seen talking to him. He then saw the accused shifting the weapon which he carried from the right hand to the left hand and thereafter tapping the chin of the deceased. When the deceased tried to open the door and come out of the jeep, PW3 would say that the accused stabbed the deceased. The employees of the deceased raised cries which brought people to the spot. Since he was frightened, he did not go to the place of occurrence.
26. The evidence of PW1 is sought to be discredited on the ground the he is an interested witness and that his evidence cannot be readily accepted. It was also pointed out that there are several omissions brought out in Crl.A. No. 1200 of 2011 -22- the cross examination which would make his evidence extremely vulnerable.
27. It is therefore necessary to refer to those aspects which is highlighted by the learned counsel for the appellant. The omission pointed out is regarding the type of stones that was being transported by the deceased. PW1 disowns the statement that he had stated that the deceased was transporting the pieces of stones converted by him in the trailer. Another ground taken to discredit him is that PW1 has stated the manner in which he claims to have seen the infliction of injury, which is in conflict with medical evidence. Relying on the evidence of PW6, it is contended that the way in which PW1 is said to have seen the infliction of injury could not be true going by the narration of injuries in Ext.P4 post- mortem certificate.
28. To say the least, the above two grounds are totally insufficient to discredit the evidence given by PW1. Crl.A. No. 1200 of 2011 -23-
29. First of all, the issue is whether the accused had inflicted the injury on the deceased. The omission or the contradiction which is already referred to by itself is insufficient to discredit the evidence of PW1. Apart from that the maxim falsus in uno, falsus in omnibus can also apply. It is significant to the notice that the presence of PW1 at the spot is not seen challenged at all in cross examination. Of course, there was an attempt to bring out through his evidence that the accused had claimed ownership of the stones which was sought to be removed by the deceased. Except for mere suggestion, there is nothing brought out in the evidence of PW1 to show that in fact, there was an attempt from the side of the deceased to remove stones owned and possessed by the accused.
30. As far as PW2 is concerned, she is sought to be discredited by taking aid of Ext.D1 which she disowns at the time of evidence. Ext.D1 is a portion of 161 statement to the Crl.A. No. 1200 of 2011 -24- Police. The relevant portion reads as follows:
"5^x_OUx M^7Ja 5\oaf5GaK XmE\Jm %U_f?
fI^G_:n_G 2xa g\^Aa 5\om <`M_fa f?O_\y_W 5Ox_ 'yA_O_G gVW" XgL^Wa" >^Ha" %M:nX g:Gfa <`M_W U\cx_gD^?aM^7Ja 5]_E UVW" 5`y_O_G 5f\o?aAaKD_H^O_ UKa."
31. Even assuming that there is inconsistency, one fails to understand how it can have any bearing on the issue involved in the case on hand. The question is whether the witness had occasion to see the infliction of injury. The fact that she was an employee of the deceased and that her presence at the place of incident is not seen challenged at all. Her evidence indicates that the accused had claimed ownership of the stones.
32. As already noticed, the presence of PWs 1 and 2 is not seriously disputed by the defence at all. They cannot be termed as interested witnesses for they had no particular motive to falsely implicate the accused. The fact that they are Crl.A. No. 1200 of 2011 -25- the employees of the deceased and they were present at the spot, was not seen challenged at all. To discredit their evidence on the basis of minor inconsistencies and insignificant omissions amounts to violation of law.
33. More interesting is the attack made on the evidence of PW3. Of course, he claimed to be an employee of the accused himself. Even though he is disowned by the accused, what is interesting to see is that PW3 has specifically stated in chief examination that at the relevant time he was tapping rubber trees standing in the property of the accused. That he was doing so is not seen challenged in the cross examination. He is sought to be discredited by his statement in the cross examination that he had not ventured to go to the place of occurrence after seeing the incident. Relying on the evidence of PW5, it is contended that this cannot be true because, when he reached the place of incident after hearing the commotion, he found PW3 helping the deceased. Crl.A. No. 1200 of 2011 -26-
34. Even assuming to that extent there may be inconsistencies between the evidence of PWs 3 and 5, the question is whether that by itself is sufficient to discard the evidence of PW3. As in the case of PWs 1 and 2, no specific motive or intention is attributed to PW3 as to why he should falsely implicate the accused. It is also contended that PWs 1 and 2 do not speak about the presence of PW3 at all and that shows that he could not have present at the place of occurrence.
35. In raising such a contention, the appellant conveniently overlooks one fact. While PWs 1 and 2 were at the spot of the incident, PW3 was standing in the property of the accused i.e. slightly far away from the place of occurrence which is on higher level. It is quite possible that the presence of PW3 at that time would not have been noticed by PWs 1 and
2. Thus, it could be seen that the criticism levelled against the evidence of PWs 1 to 3 are without substance. Crl.A. No. 1200 of 2011 -27-
36. It was then contended that if the narration of infliction of injury as spoken to by PW1 is accepted, the injury noticed by PW6 in Ext.P4 could not be correct.
37. It must be noticed that PW1 is an illiterate rustic witness. His narration of the mode of infliction of injuries cannot be equated to the evidence given by an experienced forensic surgeon regarding the infliction of injury. All that one needs to be looked into is to see whether PW1 is a trustworthy witness with regard to the infliction of injury.
38. The evidence of PW5 will be relevant to the extent that he was the convenor of the scheme as per which road made mention of by the accused was laid when questioned under 313 of Cr.P.C. He says that the accused was also one of the members of the committee vested with the duty of laying of road. In unequivocal terms, he would say that the deceased was engaged in the contract of laying of Crl.A. No. 1200 of 2011 -28- road.
39. It is contended on behalf of the appellant that that was in the year 2003 and the road has to be completed on or before 31.3.2003. Thereafter, the deceased had no reason to be in the place of occurrence and that he had no business to remove any items or to be continue the work the period for which had expired a long ago.
40. PW5 would only say that he claims to be the convenor of the committee in 2005. It is clear from his evidence that laying of the road was not complete by then. PW4 though examined for a different purpose claims to be the next convenor of the committee. It could not be said in the light of the evidence furnished by PW5 that the deceased has nothing to do with the laying of the road. It is significant to notice that complaining of illegal trespass and seeking certain other reliefs, the accused had instituted a suit against the deceased and PW5 which was decreed in his favour. Crl.A. No. 1200 of 2011 -29-
41. Based on Ext.D9, which is the judgment in the suit, it was contended that the stones which were sought to be removed by the deceased belonged to the accused. One can only say that the contention is too far fetched. There is nothing to show that the heap of stones which were sought to be removed by the deceased belonged to the accused or that he was ever in possession of the same. The evidence of PW5 would indicate that it was removed from elsewhere. There is absolute want of evidence to show that the accused had any control over the stones which were sought to be removed by the deceased. The attempt therefore to establish was that the deceased was bent upon committing illegal act thus fails. In fact, the stones which were sought to be removed going by the evidence of PWs 1, 2 and 5 would show that the accused had nothing to do with the same. One need not labour much on this aspect for the simple reason that there is no evidence either from the prosecution or defence or the evidence Crl.A. No. 1200 of 2011 -30- adduced by the accused to show that the stones which were sought to be removed by the deceased ever was in possession of the accused.
42. A complaint is raised regarding the manner of questioning when questioned under Section 313 Cr.P.C. The grievance is that the court below was satisfied with putting the incriminating circumstances to the accused as far as the evidence of PW1 to PW6 were concerned. The incriminating circumstances brought out from the evidence of 7 to 10 were not put to the accused and therefore, it is contended that those materials cannot be relied on to hold the accused guilty of the offence under Section 302 of IPC. It is also contended that the contents of Ext.P2 inquest report is also not brought to the notice of the accused.
43. Though we find that there is some force in the above submission, the consequence of omission to do so will have to be viewed in the facts and circumstances of the case. Crl.A. No. 1200 of 2011 -31- There is a clinching item of evidence of PWs 1 to 3 whose evidence, as already noticed, is far above board and leads to an irresistible conclusion that the incident occurred as alleged by the prosecution. In the light of the fact that the other routine items of evidence furnished by PWs 7 and 8, who are mahazar witnesses and PWs 9 and 10, who are the officers who registered the crime and who conducted the investigation, being routine in nature except possibly for the FSL Report, which is marked as Ext.P9, the complaint of not putting question with regard to these items of evidence does not merit consideration.
44. Ext.P9 shows that the articles which were collected during investigation were sent for forensic laboratory and it was found that the blood stains were found on the clothes of the accused and also on the weapon alleged to have been used by the accused. True, these items of evidence should have been put to the accused when questioned under Crl.A. No. 1200 of 2011 -32- Section 313 Cr.P.C.. But the omission to do so cannot be treated to be fatal in the sense that in the light of ocular direct evidence, the mere fact that some routine procedural evidence has not been put to the accused, cannot enable to the accused to contend for the position that he is entitled to an acquittal. In fact, there is catena of decisions holding that the mere omission to put certain items of evidence to the accused when questioned under Section 313 Cr.P.C. by itself may not be a ground leading to an acquittal of the accused. The omission will have to be viewed in the context of the case and there is no invariable rule that such omissions were always fatal to the prosecution. The authority, if any, in this regard is furnished in the decision reported in Paramjeet Singh Alias Pamma v. State of Uttarakhand ((2010) 10 SCC 439), wherein it was held as follows:
"Thus, it is evident from the above that the provisions of Section 313 Cr.P.C make it obligatory for the court to question the accused Crl.A. No. 1200 of 2011 -33- on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."
45. As already noticed, even though there was a failure on the part of the court to strictly comply with Section 313 of Cr.P.C., the other items of evidence which have been put to the accused with regard to which explanation was sought for by him, are sufficient to show that the act was committed by the accused. The contention therefore based on the above omission is only to be rejected.
Crl.A. No. 1200 of 2011 -34-
46. Having found that the prosecution has succeeded in establishing the case against the accused, the next question that arises for consideration is what is the offence, if any, committed by the accused.
47. Three pronged attack is made regarding the finding of the court below that the offence falls under Section 302 of IPC. The first among them is that the court below ought to have found that the accused acted in private defence, especially, in protection of his property and therefore he falls under the exceptions to Section 302 of IPC and the act can fall only under Section 304 Part I or II of IPC. In support of the contention, he relied on the decision reported in Darshan Singh v. State of Punjab and Another ((2010) 2 SCC 333), wherein, it was held as follows:
"The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, Crl.A. No. 1200 of 2011 -35- democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.Crl.A. No. 1200 of 2011 -36-
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
48. In the decision reported in Jacob @ Jaimon v. State of Kerala (2012 KHC 313), it was held as follows:
"50. Did he have time to take recourse to the protection of public authorities? In having returned to the scene with M.O.1 and in not having run to the police or other public authorities to complain against the illegal action of the deceased, we are of opinion that the appellant has not lost his right of private defence. Section 99 of the Indian Penal Code Crl.A. No. 1200 of 2011 -37- stipulates:
"There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities".
That the appellant's movable property was facing threat of illegal removal from his possession and/or unjustified damage is established. The property had not been removed. It was still available at the scene. He could not defend his possession with his physical power and had returned from the scene only to collect men and material to defend his possession. It cannot possibly be contended that he had "time" to approach the public authorities to protect his possession. If he had chosen to run to authorities with his grievance he could not have defended his possession effectively. His possession was not lost and the deceased had not retreated with his property. Nor had the deceased committed mischief when the appellant retreated from the scene to come back immediately thereafter. Under Section 105 of the IPC his right of private defence of property was very much in existence and did continue to exist when he returned. The decision in Kumaran v. State of Kerala (1991 (2) KLT 679) makes the position crystal clear that he was not obliged to Crl.A. No. 1200 of 2011 -38- take recourse to the protection of public authorities. He had no "time" , as contemplated by Section 99, to have recourse to public authorities for protection of his right.
51. Did this right extend to the causing of death? This is the next question that has got to be considered. Under Section 103 IPC circumstances are enumerated, under which the right of private defence of property extends to the causing of death. We must always remind ourselves of the mandate of Section 99 IPC that the right of private defence can in no case extend to the infliction of more harm than it is necessary to inflict for the purpose of defence. In the instant case, we note that the deceased and P.W.2 were not armed with any weapons. An apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised could not have been justifiably entertained. The case of the appellant does not certainly fall within Clause fourthly of Section 103 of the Indian Penal Code. Infliction of such serious injury with MO1 on the deceased does not appear to be justified in the given circumstances. We do, in these circumstances, take the view that the appellant's right to private defence did not extend to the causing of death Crl.A. No. 1200 of 2011 -39- of the deceased."
49. Attention is drawn to the above decision to contend for the position that in the said decision the question was considered whether the accused, who had time to consider the consequence of the his act, could claim the benefit of private defence. Reliance was also placed on the decision reported in Pathubha Govindji Rathod and Another v. State of Gujarat ((2015) 4 SCC 363), wherein, it was held as follows:
"A person faced with injury with a deadly weapon to his life cannot be expected to weigh in balance the precise force needed to avoid danger. Referring to Bhanwar Singh v. State of M.P., this Court, in State of Rajasthan v. Manoj Kumar, has observed as under: (SCC p. 751, para 15) "15.3. In Bhanwar Singh v. State of M.P. it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the Crl.A. No. 1200 of 2011 -40- accused, and that this right extended to causing death; and if the court were to reject the said plea, there are two possible ways in which this may be done i.e. on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2 IPC.""
50. It will be useful to remember that going by Section 105 of the Indian Evidence Act, it is clear that when an accused claims the benefit of an exception, then the burden is on him to prove the case. But that does not absolve the prosecution from proving its case beyond reasonable doubt. It is well established by now that in spite of the absence of defence of private defence put by the accused, if the materials on record or in other words, the evidence adduced by the prosecution itself indicates that the accused had exercised the act while acting in private defence of either body or property, Crl.A. No. 1200 of 2011 -41- he cannot be denied the benefit of the same. In the case on hand, the accused relies on Section 103 of the Indian Evidence Act in support of his case. It reads as follows:
"103. Burden of proof as to particular fact.-- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
51. Times without number, it was emphasized that the deceased had attempted to remove the property which belonged to the accused and in that process, he had acted as he did.
52. The contention presupposes that there is evidence to show that the property belonged to the accused. Except for what PWs 1 and 2 have stated that the accused laid claim to the stones, there is absolutely no evidence to show that the stones which were sought to be removed by the deceased were actually belonged or was in the possession of Crl.A. No. 1200 of 2011 -42- the accused. The sequence of events speak for themselves. To the deceased, the accused never laid a claim of ownership or possession of the stones. As soon as the deceased stated that stones belonged to him and he had every right to remove the same, the accused first assaulted on the chin of the deceased and them stabbed him. There was no pointed question to PW5 that stones that were heaped and which the deceased attempted to transport, were the stones which were removed from the property of the accused which led to the filing of the suit and resulting in Ext.D9 judgment. As things now stand, the stones which were attempted to be removed, were lying by the side of the road and there is absolutely no material to show that the accused had any control and possession over the same. If that be so, the defence based on Section 103 of the Indian Evidence Act has no application to the facts of the case.
Crl.A. No. 1200 of 2011 -43-
53. The next contention is based on grave and sudden provocation falling within the ambit of Exception 2 of Section 300 which reads as follows:
"Exception 1:-- When culpable homicide is not murder-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:
First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question Crl.A. No. 1200 of 2011 -44- of fact."
54. Here again, when one carefully looks at the wording of Section and analyses the facts of the case, it can be noticed that the act cannot fall within the ambit of the said provision. There is nothing to show that the grave and sudden provocation was provided by any act committed by the deceased. It was the accused who had called on the deceased and picked up the quarrel with him and one should remember that there is no evidence regarding any of the acts committed by the deceased which would have caused grave and sudden provocation to the accused by prompting him to inflict the injury. Further, it was he who had first assaulted the deceased, who was sitting in the jeep without any reason or justification. There is nothing to show that any act was committed by the deceased which would make the accused to lose his self control by grave and sudden provocation. Crl.A. No. 1200 of 2011 -45-
55. In the light of the above facts, the plea based on grave and sudden provocation has necessarily to fail.
56. Finally, a valiant attempt was made to bring the act within the ambit of Section 304 Part II by pointing out that only a single blow was inflicted and that was done at the spur of the moment. In the decision reported in Abdul Majeed v. State of Kerala (2016 Crl.L.J. 57), it was held as follows:
"The facts and circumstances available in the case clearly show that Exception 4 to Section 300 of I.P.C. would apply in the case. Admittedly, there was no premeditation. Incident happened as a result of sudden fight. The evidence would disclose that the act was committed by the accused in the heat of passion upon a sudden attack. It cannot also be said that the accused took undue advantage or acted in a cruel or unusual manner. Since Exception 4 to Section 300, I.P.C. applies, the act alleged would constitute culpable homicide not amounting to murder and it would attract Section 304, I.P.C.. In the present case, the facts and circumstances would disclose that the accused had the intention of causing bodily Crl.A. No. 1200 of 2011 -46- injury as is likely to cause death. Therefore, we are of the view that Section 304 Part I of the Indian Penal Code is attracted."
57. In the decision reported in Ramakrishnan Unnithan v. State of Kerala (1999 (2) KLT 129), it was held as follows:
"5. The plenitude of power available to the court, heating an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction. But however, the court will not interfere solely because a different plausible view may arise on the evidence. In a case of murder, if the reasons given by the trial court for discarding the testimony of the eye witnesses are not sound, then there should be no hesitation on the part of the High Court in interfering with an order of acquittal. If the Judgment of the trial judge was absolutely perverse, legally erroneous and based on wrong testimony, it would be proper for the High Court to interfere and reverse an order of acquittal. Having examined the judgment of acquittal passed by the learned Sessions Judge Crl.A. No. 1200 of 2011 -47- and the impugned Judgment of the High Court, reversing the said judgment of acquittal and on scrutinising the evidence of the three eye witnesses, though we find some substance in the grievance of Mr. Lalit, appearing for the appellant that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, bait it is difficult for us to come to hold that the High Court exceeded its jurisdiction and the parameters fixed for interference with an order of acquittal. We find the approach of the learned Sessions Judge in recording an order of acquittal was not proper and the conclusion arrived at by the Sessions Judge on several aspects in unsustainable. Even though, the eye witnesses appear to have exaggerated their version and improved upon their version in giving a role to the accused No. 2 for which an order of acquittal passed by the Sessions Judge has been affirmed by the High Court but to bring home the charge of murder against the appellant on the ground that he gave a stabbing blow on the deceased on a vital pan by means of a knife, while he came out of his house was been consistently narrated by the three eye witnesses. There has been no embellishment or exaggeration of these eye Crl.A. No. 1200 of 2011 -48- witnesses so far as the role ascribed to the appellant from their previous version to the Police is concerned. Thus the basic prosecution case as unfolded through the testimony of the aforesaid three witnesses is fully corroborated by the medical evidence of the two doctors and, therefore, the learned Sessions Judge was not justified in discarding this part of the prosecution case and in acquitting the appellant and the High Court, therefore, was fully entitled to re- appreciate the evidence of these witnesses and record its own conclusion on the question whether the evidence of the eye witnesses that the appellant gave the stabbing blow on the deceased can at all be sustained or not. We have ourselves scrutinised the evidence of the three eye witnesses and we are of the considered opinion that the reasons adduced by the trial court for discarding their testimony were not at all sound. On the other hand, the evaluation of the evidence made by the trial court was manifestly erroneous and, therefore, it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. In this view of the matter, we are unable to accept the ultimate submission of Mr. Lalit that the High Court exceeds its limit in Crl.A. No. 1200 of 2011 -49- interfering with an order or acquittal passed by the learned Sessions Judge.
6. The question then remains for consideration is whether on the material on record can it be said that the appellant gave the blow on the deceased with the intention of causing murder of the deceased so as to be convicted under S. 302 IPC. The eye witness account of the three eye witnesses is to the fact that when PW I cried aloud, his sister rushed there and at that point of time his father, the deceased crane out, opening the door and asked as to why his son is being beaten up and then the appellant stabbed the deceased on his abdomen with the knife. The postmortem report of the deceased indicates existence of a sutured incised wound inverted `L' shaped on the left side of the abdomen, the vertical limb was parallel to the midline, 4 cms. in length and the horizontal limb from its upper and measured 3 cms. and was placed 1.3 cms to the left of midline and the junction of the two limbs were at the level 25 of umbilicus. The wound entered the abdominal cavity. The doctor PW14, who was working as Tutor in Surgery, Medical College, Trivandrum and was in the casuallty on 17.4.85, in his evidence stated that the deceased had an Crl.A. No. 1200 of 2011 -50- incised wound 4 cms. long below the umbilicus, left to the midline of the body with a part of the intestine protruding out and that is the only injury. The doctor who conducted the autopsy, PW 9 in his evidence also stated that though there are three injuries on the deceased as per the postmortem report, but injury Nos. l and 3 are surgical injuries and injury No.2 is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no-doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW 1. The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under S.302 but under Part 11 of S.304 IPC. We accordingly, set aside the conviction of Crl.A. No. 1200 of 2011 -51- the appellant under S.302 IPC and instead, convict him under S.304 Part 11. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this court dated 6th February, 1992. Mr. Lalit, appearing for the accused-appellant stated that he has already undergone sentence of about four years. In such circumstances, for his conviction under S.304 Part 11 IPC, we sentence him to the period already undergone. His conviction under S. 324 IPC remains unaltered but no separate sentence is being awarded. This Criminal Appeal is disposed of accordingly. The bail bond furnished by the appellant stands discharged."
58. One cannot accept the contention that there is only single blow, the act falls within the ambit Section 300. Each case will have to be analysed in the facts and circumstances of that case in appreciating the evidence available on record. It is not a rule that in all cases where there is only single blow resulting in the death of the victim concerned, the act can fall within Section 304 Part II only. In Crl.A. No. 1200 of 2011 -52- fact this question was considered in detail in the decision reported in Ankush Shivaji Gaikwad v. State of Maharashtra (AIR 2013 SC 2454), wherein, it was held as follows:
"We may lastly refer to the decision of this Court in Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444 : (AIR 2006 SC 3010 : 2006 AIR SCW 4143) where this Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. This Court observed :
"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304, Part I or 304, Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, Crl.A. No. 1200 of 2011 -53- there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304, Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-
meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the Crl.A. No. 1200 of 2011 -54- injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
(Emphasis supplied)
59. One may now look at the act committed by the accused in the context of the decision referred to above. He had used a dangerous weapon and the injury was inflicted on the vital part of the body and the nature of injury caused as detailed in Ext.P4 would convincingly show that the injury was inflicted with sufficient force. It is not a case where the injury was inflicted by accident or otherwise. Injury was aimed at the vital part of the body and that is with sufficient force using a dangerous weapon. It is well settled by now that a man should be deemed to have knowledge of natural consequence of his act. A person, who inflicts an injury with sufficient force on Crl.A. No. 1200 of 2011 -55- the vital part of the body, cannot be heard to say that he did not know the consequence of the act.
60. We, in spite of best efforts, could not accept the contention raised by the learned counsel for the appellant that even assuming all what the prosecution says is true, the offence under Section 304 Part II applies to the facts of the case. Even assuming that there was no intention to cause death, the act of the accused cannot escape from falling within the ambit of Clause IV of Section 300 which stipulates that culpable homicide amounts to murder if the injury so inflicted is dangerous and the accused is then credited with knowledge that it is sufficient in the ordinary course of nature to cause death of a person.
For the above reasons, we find no grounds to interfere with the conviction and sentence passed by the court below under Section 302 of IPC. As already noticed, even though the statute mandates imposition of fine, for the reason Crl.A. No. 1200 of 2011 -56- best known to the court below, it is not done. It is a serious flaw. We leave it there. This appeal is without any merits and it is accordingly dismissed.
sd/-
P.BHAVADASAN JUDGE Sd/-
RAJA VIJAYARAGHAVAN V JUDGE ds //True copy// P.A. to Judge