Kerala High Court
Vava @ Pichathi Vava @ Shajahan vs State Of Kerala on 20 August, 2020
Equivalent citations: AIRONLINE 2020 KER 1121
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942
CRL.A.No.1230 OF 2016
IN SC 1086/2014 OF ADDITIONAL SESSIONS COURT-I, KOZHIKODE
IN CP 34/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,
THAMARASSERY
CRIME NO.93/2014 OF THIRUVAMBADI POLICE STATION, KOZHIKODE
APPELLANT/S:
VAVA @ PICHATHI VAVA @ SHAJAHAN
AGED 35 YEARS, S/O. HAMSA, PALLATH HOUSE,
KOTAKKATTUPURA, PULLOORAMPARA POST, KOZHIKODE
DISTRICT.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SRI. ALEX M. THOMBRA, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12-08-2020, THE COURT ON 20-08-2020 DELIVERED THE FOLLOWING:
Crl. Appeal No.1230/2016
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ORDER
Dated this the 20th day of August, 2020 N. Anil Kumar, J.
The appellant, Vava @ Pichathi Vava @ Shajahan, was the accused in SC No. 1086/2014 of the Additional Sessions Court-I, Kozhikode and convicted of having committed the murder of one Aneesh on 16.03.2014 at Thazhe Kotakkattupara in Thiruvambady Grama Panchayath.
2. The prosecution case, in brief, is as hereunder:
On 16.03.2014 at 20.15 hrs at Thazhe Kotakkattupara in Thiruvambady Grama Panchayath, the accused, who had been waiting on the side of the road, had occasion to see the deceased Aneesh along with PWs 2 and 8 on a motorcycle at the place of occurrence. He had immediately shown a signal to stop the Crl. Appeal No.1230/2016 ..3..
motorcycle and had exchanged words with the deceased in connection with an untoward incident, which happened on the very same day evening at Pulloorampara bazaar. During the course of exchange of words between the accused and the deceased Aneesh, the accused suddenly took out a knife from his waist and mercilessly stabbed Aneesh with a deliberate intention to cause his death. Consequent to the assault, Aneesh sustained severe injuries on his stomach. Soon after the occurrence, the injured was taken to the Lisa Hospital at Thiruvambady. As advised by the doctors, the injured was then taken to the Medical College Hospital, Kozhikode for better management. The doctor attached to the Medical College Hospital, Kozhikode examined the injured and proclaimed that the injured was brought dead.
3. An FIR was registered on 17.03.2014 on the strength of Ext.P1 First Information Crl. Appeal No.1230/2016 ..4..
Statement. PW1 is the informant. PW1 testified before the court that he was an autorikshaw driver by profession. On 16.03.2014, he had been to Kotakkattupara. On his return trip therefrom, he reached a place, namely, Murikkittathodi, where he had an occasion to see and chat with his friends - Prathin, Sudheesh and PW4 Arun. In the meanwhile, he received a phone call from Chettoor Babu (PW8) informing that Pichathi Vava (the accused) stabbed Aneesh and had asked him to reach Pulloorampara by his autorikshaw. When he reached near the house of Pulivelil George at Thazhe Kotakkattupara, he saw Jobish (PW2) and Chettoor Babu (PW8) holding the injured Aneesh. He got Aneesh boarded in his vehicle along with Sudheesh, Anoop (PW3) and Chettoor Babu (PW8). Though they took the injured to the Lisa Hospital, Thiruvambady, after giving him the required first aid, the doctor advised Crl. Appeal No.1230/2016 ..5..
them to take the injured to the Santhi Hospital, Omassery. Then, the injured was taken in an ambulance to the Santhi Hospital and thereafter, to the Medical College Hospital, Kozhikode. From the Santhi Hospital, PW1 returned to his house in his autorikshaw. When he reached the house, Chettoor Babu (PW8) informed him that Aneesh had succumbed to the injuries.
4. The postmortem examination of the body was conducted by Dr.Sujith Sreenivas (PW16) at the Medical College Hospital, Kozhikode on 17.03.2014. PW16, who was working as Assistant Professor and Deputy Police Surgeon at the Department of Forensic Medicine, Medical College Hospital, Kozhikode, issued Ext.P9 postmortem report. The external injuries found on the dead body of the deceased as described in the postmortem certificate issued by PW16 were four in number, which are as hereunder; Crl. Appeal No.1230/2016
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(1) Incised wound 2.5 cm long gaping for 1.5 cm obliquely placed, on the right side of abdomen with a left lower end and right upper end. The injury was 14 cm to the right of lower margin of umbilicus. The margins were sharply cut with the inner lower end, blunt and outer upper end, pointed. Marginal skin contusion seen around the blunt end. The outer half of the lower margin of the incised wound was abraded with a side cut (0.5 x 0.3 x 0.3 cm) along the lower margin 1cm outer to inner end. Faint marginal abrasion seen along with outer two third of upper margin of the incised wound. Abdominal fat seen protruding out the gaping injury. The injury was 11 cm above the groin and 14 cm outer to midline. The injury was 97 cm above heel. The wound extended into the abdominal cavity by piercing the peritoneum Crl. Appeal No.1230/2016 ..7..
(injury measured 2 x 0.8cm). The underlying small bowel (ileum) had three sharp cuts measuring 2.5 x 0.2 cm, 1.5 x 0.5 cm and 2 x 0.5 cm through which the contents were protruding outside. The wound terminated by piercing the retro peritoneum on the right side along the upper outer margin of the right iliopsoas muscle. The total minimum depth of the injury was 10 cm and the wound was directed backwards, inwards and slightly upwards.
(2) Incised wound 2.5 cm long curved, due to retraction, gaping 1 cm, vertically placed on the inner aspect of right thigh, 3 cm below the groin and 7 cm inner to front midline of thigh. The injury was 72 cm above the heel. The convexity of the curvature was towards the back. The upper end was blunt and lower end was pointed. The margins were sharply cut. The Crl. Appeal No.1230/2016 ..8..
subcutaneous fat of the thigh was seen protruding out. There was a superficial tailing cut from the lower end of the wound, downwards and outwards. The wound extended through the muscles on the inner aspect of thigh for a depth of 8 cm, cutting the medial portion of the femoral vein. Femoral vein was found cut partially. The total minimum depth of the injury was 8 cm and the wound was directed backwards, outward and slightly downwards. (3) Abrasion 0.8 x 0.6 cm on the front of right side of lower lip 0.5 cm outer to midline.
(4) Healed abrasion 1 x 0.5 cm on the back of left forearm, 5 cm below elbow.
5. The cause of death was incised punctured (stab) injuries sustained to the abdomen involving the bowel and thigh, involving a major blood vessel (femoral vein) resulting in Crl. Appeal No.1230/2016 ..9..
blood loss and shock.
6. The femoral vein is located in the upper thigh and pelvic region of the human body. It travels in close proximity to the femoral artery. PW16 opined that the injuries 1 and 2 could be caused by MO3 knife. According to him, injury No.2 also could be caused during the course of withdrawing the knife after causing the first injury. On going through the evidence of PW16 and Ext.P9 postmortem certificate, it is clear that the deceased suffered a homicidal death on account of the occurrence.
7. PW2 is an eye witness to the occurrence. He was travelling along with the deceased and PW8 Babu at the time of occurrence. According to him, on 16.03.2014 at about 6 pm, while he was talking to his friend Aneesh, he saw the accused and PW6 Suneer engaged in a quarrel each other. Consequently, PW8 Babu told them Crl. Appeal No.1230/2016 ..10..
not to quarrel and persuaded the accused to go from the place to Kotakkattupara. However, he did not go as advised by PW8. But, after sometime, the accused came back again to Pulloorampara bazaar and quarrelled with PW6 Suneer @ Aliyan. On seeing this, PW2 along with Aneesh and PW3 Anoop intervened in the matter and warned the accused not to make any further scenes at the bazaar. They had succeeded in separating the accused and PW6 Suneer @ Aliyan then. Nevertheless, after sometime, there was an exchange of words between Aneesh and the accused. To prevent any further untoward incident, PW2 along with Aneesh and PW3 Anoop persuaded the accused to go away from the place. Thereafter, at about 8 pm, PW2 and Aneesh proceeded to Kotakkattupara on the motorcycle owned by Aneesh. On the way, PW8 Babu also joined them and they travelled together on the very same motorcycle. When Crl. Appeal No.1230/2016 ..11..
they reached near the house of Pulivelil George at Thazhe Kotakattupara, they saw the accused standing by the side of the road. On seeing them, the accused showed a signal to stop the motorcycle. Aneesh immediately stopped the vehicle and asked him as to what problem was troubling him. The accused replied that Aneesh himself was the problem. Since there was an exchange of rough words between Aneesh and the accused, PW2 and PW8 Babu, who were on the pillion, alighted from the motorcycle. According to him, in the meantime, the accused had stabbed Aneesh with MO3 on his stomach one or two times and then fled away running towards Pulloorampara.
8. PW2 testified that immediately after the occurrence, Aneesh fell on the petrol tank of the bike unconscious. Hearing the hue and cry of PW2, PW1 came in his autorikshaw and PW1 and PW8 initially took Aneesh to the Lisa Crl. Appeal No.1230/2016 ..12..
Hospital, Thiruvambady. According to PW2, he did not go to the hospital along with the injured as he was not having a dhothi. Hence, he went to the house of one George, obtained a dhothi and went to the hospital on a motorcycle belonging to another person. Aneesh was taken to the Lisa Hospital, Thiruvambady and as advised by the doctors, later, taken to the Santhi Hospital, Omasserry for further treatment. The doctors at the Santhi Hospital examined Aneesh and declared that the condition of the patient was critical. Accordingly, Aneesh was taken to the Medical College Hospital, Kozhikode. On examination, the doctor at the Medical College Hospital, Kozhikode declared that Aneesh was brought dead.
9. PW6 Suneer @ Aliyan stated before the court that on 16.03.2014 at noon, he was engaged in playing carroms in a shop, which is situated Crl. Appeal No.1230/2016 ..13..
near to his hotel. While so, the accused came there and scolded him. According to him, the accused borrowed some money from him earlier and he demanded the same on the previous day. He would further depose that on account of the afore said enmity, the accused had scolded him. To avoid any untoward incident, he requested the accused to go away from his shop. However, the accused became violent and catching hold of the collar of his shirt, had beaten him on his face. Resultantly, there was a scuffle between himself and the accused. On seeing this, an onlooker, namely, John, intervened and separated him from the clutches of the accused. He further stated that the accused immediately took a knife from his waist having double blades on both sides. Sensing danger, he ran away to the party office and the accused went away from the spot as a pillion rider on the motorcycle of one Crl. Appeal No.1230/2016 ..14..
Moideen. At about 6 pm, according to him, the accused came again to the bazaar, took a knife to stab him and began quarrelling with him. He then went inside his house and took a bill-hook to defend him. But, his wife and one Shajan resisted him from going outside. On the next day morning, he came to know that Aneesh succumbed to the injuries.
10.It is the consistent case of the prosecution that there were two wordy altercations between the accused and PW6 on the date of occurrence at about noon, as well as in the evening. PW8 witnessed both the incidents, which took place at Pulloorampara bazaar at 6 pm as well as the incident, in which Aneesh sustained injuries. He testified that on 16.03.2014 at about 6 pm, while he was at Pulloorampara bazaar, he saw PW6 Suneer @ Aliyan and the accused quarrelling each other. He intervened in the matter and separated PW6 and the accused. He Crl. Appeal No.1230/2016 ..15..
further stated that after sometime, the accused again came to Pulloorampara bazaar and started quarrelling with Aneesh. To avoid further untoward incidents, Aneesh, PW2 Jobish and PW3 Anoop persuaded the accused to go away from the scene. On that day, around 8 pm, while he was proceeding to his house, he saw PW2 Jobish and Aneesh coming on the motorcycle. On seeing him, they stopped the motorcycle and allowed him to board the vehicle as one of the pillion riders. When they reached near the house of Pulivelil George, the accused, who was standing on the side of the road, suddenly came forward and showed a signal to stop the motorcycle. Aneesh, who was riding the motorcycle, stopped the vehicle and asked the accused as to what the problem was with him. The accused replied that Aneesh himself was the problem and then came very close to the motorcycle. Sensing Crl. Appeal No.1230/2016 ..16..
danger, he and PW2 Jobish alighted from the motorcycle. According to him, in the meanwhile, the accused took out a knife from his waist and stabbed on the stomach of Aneesh one or two times. Consequent to the injuries sustained, Aneesh fell on the petrol tank of the motorcycle and became unconscious. While so, the accused ran away from the spot. He along with PW2 lifted Aneesh from the motorcycle. Meanwhile, PW3 also came to the scene of occurrence in a motorcycle. After sometime, PW1 brought an autorikshaw and Aneesh was taken to the Lisa Hospital, Thiruvambady for treatment. After giving first aid, Aneesh was taken to the Santhi Hospital, Omassery and thereafter, to the Medical College Hospital, Kozhikode for better management. The doctor examined Aneesh and proclaimed that Aneesh was brought dead to the hospital.
Crl. Appeal No.1230/2016
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11.PW3 was travelling on a motorcycle just behind the deceased Aneesh and PW2 Jobish. He narrated the occurrence, which happened at 8pm. He further stated that while he was travelling in the motorcycle towards Kotakkattupara just behind the motorcycle on which deceased Aneesh and PW2 Jobish were travelling, he saw the accused walking along the road carrying a knife in his hand at Thazhe Kotakkattupara. He further stated that on seeing him, the accused ran away to the nearby property. When he proceeded further on his motorcycle, he saw PW2 Jobish and PW8 Babu holding Aneesh near the house of Pulivelil George. On enquiry, he was told that the accused had stabbed Aneesh. After sometime, PW1 came in an autorikshaw and took the injured to the Lisa Hospital and later to the Santhi Hospital, Omassery and finally to the Medical College Hospital, Kozhikode. Crl. Appeal No.1230/2016
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12.PW5 is the wife of Pulivelil George. She stated that on 16.03.2014 between 8 and 8.30 pm, while she was in the kitchen of her house, she heard a hue and cry from the road. Her children immediately came to her and told her that somebody had knocked on the door. Immediately, she took a handy torch and went outside the house, where she could not find anybody at the courtyard. However, when she looked at the road, she found a person lying on the road and three persons standing nearby. She further stated that she could notice a motorcycle parked nearby. She also stated that after sometime, some persons took the person lying on the road in an autorikshaw and went away.
13.PW4, PW7 and PW9 are not material witnesses for the prosecution. PW4 stated that he went to the scene of occurrence along with PW1 in his autorikshaw after getting information that Crl. Appeal No.1230/2016 ..19..
the accused had stabbed Aneesh. PW7 is the owner of a shop at Pulloorampara. He deposed before the court touching the evidence adduced by PW6 Suneer @ Aliyan with reference to the incident happened at noon as well as in the evening of 16.03.2014. PW9 is yet another witness examined by the prosecution with reference to the incident, which took place at Pulloorampara. PW9 testified before the court in accordance with evidence given by PW2, PW6 and PW8.
14.PW21 completed the investigation in this case and filed the final report. PW20 initially recorded Ext.P1 statement of PW1 and registered Ext.P13 FIR. On the strength of Ext.P13 FIR, PW21 proceeded to the place of occurrence and prepared Ext.P3 mahazar. He seized the motorcycle bearing Reg. No. KL-57/D 9858, which was parked at the scene of occurrence. He further seized the blood Crl. Appeal No.1230/2016 ..20..
samples collected by PW17, the Scientific Assistant attached to the District Crime Records Bureau, Kozhikode. PW21 seized the dress worn by the deceased under Exts.P7 and P14 seizure mahazars.
15.PW21 arrested the accused on 17.03.2014 at 10 pm from the bus-stand at Thamarassery and recorded his formal arrest on 18.03.2014. While in custody, the accused confessed before him by way of Ext.P16 that MO3 knife was kept under a heap of coconut husks on the way leading to the house of the accused from Pulloorampara bazaar. Pursuant thereto, PW21 proceeded to the place, where MO3 was concealed, as led by the accused and recovered MO3 knife in accordance with law as per Ext.P4 seizure mahazar.
16.As per Ext.P4 seizure mahazar, the total length of MO3 knife including handle is 27 cm. MO3 knife is different from an ordinary knife. Crl. Appeal No.1230/2016
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This formidable knife has curved double blades on each side and is made of steel. Each blades is 8 cm long. The handle is 11 cm long. This knife is a double-edged dagger, popularly known as "haladie" consisting of two curved blades attached to a hilt. Double-edged knives play different sorts of activities in different contexts. From the description contained in Ext.P4, it appears that MO3 weapon is used to assault others and also to prevent any possible assault towards the person holding the same. PWs 2, 3 and 8 identified MO3 before court. When PW16 was examined before court, MO3 was shown to him. PW16 opined that injury nos. 1 and 2 could be caused with MO3 knife.
17.On being questioned under Section 313(1)(b) of Code of Criminal Procedure, the accused filed a written statement before the court. According to him, he did not cause any injury Crl. Appeal No.1230/2016 ..22..
to the deceased as alleged by the prosecution. He would state that Aneesh and PW2 Jobish made an attempt to assault him at Pulloorampara bazaar on 16.03.2014 at 6 pm. and threatened him with dire consequences. He would further state that while he was returning home after purchasing groceries from the shop, Aneesh, PW2 Jobish and PW8 Babu followed him in a motorcycle and when they reached near to him, PW2 Jobish took a knife from his waist and made an attempt to stab him. Immediately, while preventing the same, he had sustained injuries in his left palm. He further stated that he made an attempt to escape from the place and while so, PW2 Jobish made an attempt to stab him again and while avoiding the stab, Aneesh sustained stab injuries. He would further state that PW2 Jobish again made an attempt to stab him and while so, Aneesh sustained injuries in between his thighs when Crl. Appeal No.1230/2016 ..23..
he tried to alight from the motorcycle. His consistent case is that immediately after the occurrence, he ran away from the scene of occurrence. He also stated that when he was produced before the learned magistrate, he had shown four fractures on his left palm, right little finger, right forearm and right knee apart from a huge abrasion on his left head. According to him, these injuries were caused in the scuffle between the accused on one hand and PW2 and deceased Aneesh on the other hand.
18.On a perusal of the remand report, the learned magistrate noted scratches on the little finger, fore arm and the left palm of the accused. One of the contentions raised by the accused is that when he made an attempt to ward off the assault made by PW2, he had sustained injuries as stated by him. It is evident from the endorsement made by the learned magistrate that the alleged injuries Crl. Appeal No.1230/2016 ..24..
were minor and superficial. Minor and superficial injuries are not possible if a person has made an attempt to ward off an assault with a dangerous weapon like MO3. It is a settled principle of law that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case as to whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries of the accused. In the case on hand, the injuries on the person of the accused were not serious. They were superficial in nature. There is no evidence in this case to show that these injuries were sustained to the accused at the time of occurrence of the incident. The accused has not set up the plea of private defence in this case. Under Section 105 of the Evidence Act, Crl. Appeal No.1230/2016 ..25..
the burden is on the accused to prove the existence of the circumstances bringing the case under Section 100 of the Indian Penal Code (hereinafter referred to as "IPC"). The evidence adduced during the trial does not reveal any plea of private defence.
19.It is true that PW16, the doctor, who conducted postmortem examination on the body of the deceased, stated before the court that the injury found on the thigh of the deceased could be caused while withdrawing the knife from the abdomen after inflicting an injury on the abdomen. As stated earlier, MO3 is a double-edged dagger consisting of two curved blades attached to a single hilt. If such a knife had been used to assault the deceased, it could have been possible to cause another injury on the thigh while withdrawing the knife after inflicting injury on the abdomen. Two injuries on either side could be inflicted Crl. Appeal No.1230/2016 ..26..
with MO3 knife. PWs 2, 3, 6 and 8 stated that at the time of occurrence, the deceased was sitting on the motorcycle. In view of the above, it was possible to cause an injury at a time while withdrawing MO3 after inflicting injury on the abdomen. These are two independent injuries sustained to the deceased on account of the overt acts committed by the accused with MO3 dangerous weapon. Considering the nature of the weapon, we are of the view that the second injury sustained by the deceased was not an accidental one. It is possible to sustain two injuries at the same time with MO3 weapon. When MO3 was used to assault the deceased, the accused knew the natural and probable consequences of the injuries likely to be sustained to the deceased as a result of the assault.
20.It is true that PW3 did not go to the hospital as he was not having a dhothi to wear. PWs 1, Crl. Appeal No.1230/2016 ..27..
2, 3, 6 and 8 adduced evidence to show that PW2's dhothi had been used to dress the wound of the deceased Aneesh immediately after sustaining the injuries. It has further come out in evidence that after Aneesh was taken to the hospital in the autorikshaw of PW1, PW2 obtained a dhothi from the nearby house and thereafter, went to the hospital in another vehicle. On going through the oral evidence of PWs 2, 3, 4, 6 and 8, it is clear that the accused inflicted injuries on the deceased with MO3. Apart from the oral evidence of the eye witnesses, PW21 recovered MO3 knife in accordance with Section 27 of the Evidence Act. PW13, who is a witness to Ext.P14 seizure mahazar, testified before the court in tune with the evidence given by PW31 regarding the seizure of MO3. On going through the evidence of PW13, we are of the view that PW21 recovered MO3 in accordance with Ext.P16 Crl. Appeal No.1230/2016 ..28..
confession statement made by the accused.
21.The learned counsel for the accused submitted that there was an altercation between the accused and the deceased prior to the occurrence and so, it can be said that in the circumstances of the case, there was no intention to cause the murder of the accused. According to the learned counsel for the appellant, the court has failed to consider and appreciate the fact that at the time when the incident had taken place, there was an altercation between the parties and the trial court had materially erred in convicting the accused under Section 302 of the IPC. Making the above submissions and relying upon the decisions of the apex court in Surain Singh v. State of Punjab [2017 KHC 6288], Shahajan Ali & Others v. State of Maharashtra [2017 KHC 3758], Tularam v. State of Madhya Pradesh [2018 KHC 6388], Lakshmi Chand & Another v. Crl. Appeal No.1230/2016
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State of Uttar Pradesh [2018 KHC 6629], it is submitted that in the event of finding the accused guilty, the conviction of the accused may be converted to Section 304 Part II of the IPC from Section 302 of the IPC. On going through the evidence of the eye witnesses in this case, it is clear that the accused inflicted injuries directly and deep into the stomach of the deceased, a very vital part, and another injury on the femoral vein resulting in blood loss and shock, which had led to the death of the deceased within a short time. It is argued that the said injury caused to the deceased would not fall under Clause "thirdly" of Section 300 of the IPC and as such, the accused can be convicted, if found guilty, only under Section 304 Part I or Part II of the IPC. In view of the evidence adduced by the material witnesses, it was brought out that the parties were at Crl. Appeal No.1230/2016 ..30..
loggerheads. Prior to the occurrence, there was an altercation between the parties at the market place on the very same day. They were certainly on inimical terms. The injuries sustained to the deceased were serious in nature. Under the circumstances, the only possible inference, which could be drawn, is that there was an intention to cause injuries on the deceased, which had led ultimately to the death of the deceased. PW16, the doctor, who conducted the postmortem examination, had merely stated that the injuries sustained by the deceased were grievous in nature, which were inflicted upon the vital parts of the body. In view of the above, the intention and knowledge can be attributed to the accused. No evidence was adduced to show that the accused due to grave and sudden provocation was deprived of self control and he, therefore, attacked the victim and killed him. The Crl. Appeal No.1230/2016 ..31..
evidence produced against the accused would show that the accused had a motive to cause death of the deceased, which would be sufficient to cause the death of the deceased. Therefore, the ingredients of "murder" as defined under Section 300 of the IPC has been established against the accused. The nature of MO3 used on the vital parts of the body, where stabs were struck, would prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is irrelevant whether there was single stab or multiple stabs. The injuries sustained by the deceased not only exhibit the intention of the accused in causing death of the victim, but also the knowledge of the accused in that regard. Such a previous intention for attack could be none other than for causing death of the victim. Needless to say, we can come to the conclusion that such grievous injuries Crl. Appeal No.1230/2016 ..32..
inflicted on the vital parts of a body with such a dangerous weapon would normally cause death to a victim.
22.In State of Rajasthan v. Leela Ram [(MANU/SC/1540/2018) judgment dated 13.12.2018 in Crl.Appeal 1441/2013], the Supreme Court, after considering a catena of decisions, on the issue on hand, i.e., whether a case falls under Section 302 or Section 304 Part I or Section 304 Part II of the IPC, reversed the judgment of the High Court and convicted the accused for the offence under Section 302 of the IPC. In the same decision, the apex court considered Exception 4 of Section 300 of IPC and observed in paragraph 15 as under:
"Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
23.The very same principle is followed in State Crl. Appeal No.1230/2016 ..33..
of Rajasthan through the Secretary v. Kanhaiya Lal [(2019) 5 SCC 639] and Awadhesh Kumar v. State of Uttar Pradesh and Another [(2019) 10 SCC 323]. Applying the law laid down by the apex court in the afore said decisions, we are definitely of the view that the judgment of the trial court is totally based on the evidence on record. The accused contended that there was an altercation between the accused and the deceased at the time of commission of the offence. There were previous altercations as well. Hence, it can be inferred that there was an intention on the part of the accused to cause death of the deceased. The scope and ambit of Clause "thirdly" of Section 300 of the IPC was considered by the apex court in an off quoted decision in Virsa Singh v. State of Punjab [AIR 1958 SC 465] and the principle enunciated therein explaining the legal position correctly. In the circumstances, Crl. Appeal No.1230/2016 ..34..
there is no escape from the conclusion that the offence committed by the appellant is clearly covered by Clause "thirdly" of Section 300 of the IPC.
24.Having given our careful consideration made by the learned counsel for the appellant and the materials on record, we are clearly of the view that the offence committed by the appellant is under Section 300 of the IPC and not under Section 304 Part I or Part II of the IPC. The learned Sessions Judge was, therefore, perfectly correct in convicting the accused under Section 300 of the IPC. No interference is warranted.
In the result, the appeal fails and is hereby dismissed.
Sd/-
A. HARIPRASAD JUDGE Sd/-
N.ANIL KUMAR JUDGE bka/-