Anilkumar v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA,** ## **1945** **CRL.A NO. 836 OF 2017** **AGAINST THE JUDGMENT DATED 24.11.2016 IN SC NO.803 OF 2008 OF THE ADDITIONAL DISTRICT & SESSIONS COURT - VI,** ## **KOLLAM** ## **APPELLANT/ACCUSED:** **ANILKUMAR AGED 30 YEARS, S/O. ANTONY, NEDIYAVILA CHARUVILAVEEDU, THEKKEMURI CHERRY, KIZHAKKEKALLADA VILLAGE, KOLLAM DISTRICT.** **BY ADV K.VIJAYAN** ## **RESPONDENT/STATE/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.E.C.BINEESH PP** **THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 09.02.2024, THE COURT ON 27.02.2024 DELIVERED THE FOLLOWING:** Crl.Appeal No.836 of 2017 -: 2 :- ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- ## Crl. Appeal No.836 of 2017 ----------------------------------------------- Dated this the 27[th] day of February, 2024 ## JUDGMENT ## P.B.Suresh Kumar, J. The sole accused in S.C. No.803 of 2008 on the files of the Additional Sessions Court-VI, Kollam is the appellant in this appeal, which is preferred challenging his conviction and sentence in the said case. He stands convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. 2. The occurrence which is the subject matter of the case took place on 08.09.2004. One Biju aged 26 years died in the occurrence. The appellant was aged 19 years then. The accusation in the final report against the appellant is that on the date of occurrence, by about 1 p.m., when both the appellant and Biju were standing at a junction, Biju made fun of the appellant by calling him “ക�ല�ഡ�", and on account of the enmity the appellant had against Biju for the said reason, by about 6 p.m. on the same day, he caused the death of Biju by Crl.Appeal No.836 of 2017 -: 3 :- stabbing him beneath his neck at the left shoulder. The scene of occurrence as per the final report is on the side of a public road. As the appellant denied the charge framed against him by the Court of Session when committed for trial, the prosecution examined 15 witnesses as PWs 1 to 15 and proved through them Exts.P1 to P17 documents. MOs 1 to 4 are the material objects identified by the witnesses. Later, after following the procedure prescribed, on an appraisal of the materials on record, the Court of Session found the appellant guilty of the offence punishable under Section 302 IPC and convicted him. The appellant is aggrieved by the decision of the Court of Session. 3. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 4. The learned counsel for the appellant did not attack seriously, the finding rendered by the Court of Session that it is the appellant who caused the death of Biju. Instead, referring to Section 300 of the Indian Penal Code (IPC), the learned counsel forcefully contended that the injury intended to be inflicted by the appellant on the deceased in the case on hand, cannot be said to be an injury which is sufficient in the ordinary course of nature to cause death so as to bring the Crl.Appeal No.836 of 2017 -: 4 :- case within the scope of clause Thirdly to the said Section and the same, at the most, can be regarded only as an injury which was likely to cause death as provided for under the second clause to Section 299 IPC and therefore, the finding of the Court of Session that the appellant is guilty of the offence punishable under Section 302 IPC is, unsustainable in law. It was also argued by the learned counsel that if this Court agrees with the above argument, the appellant is liable to be punished only under Part II of Section 304 IPC, and inasmuch as the appellant is undergoing imprisonment since 24.11.2016, the said period can certainly be treated as the proportionate punishment for the offence committed by him. Per contra, the learned Public Prosecutor submitted that having regard to the nature of injury inflicted by the appellant and the weapon used by him, it cannot be said that the injury intended to be inflicted by the appellant on the deceased is not one which is sufficient in the ordinary course of nature to cause death. According to the learned Public Prosecutor, it is all the more so since the injury was not one inflicted in the course of the occurrence that took place in the afternoon involving the appellant and the deceased, but a few hours later, which would indicate that it was a conscious act with a definite intention to cause the Crl.Appeal No.836 of 2017 -: 5 :- death of the victim. 5. Even though the learned counsel for the appellant did not seriously challenge the finding rendered by the Court of Session that it was the appellant who caused the death of the victim as alleged, we have perused the materials on record carefully in order to satisfy that the said finding of the Court of Session is in order. The materials on record reveal that it is based on the evidence tendered by the ocular witness namely PW2, which is corroborated by the evidence tendered by PW12, the officer who conducted the investigation in the case that MO4 weapon containing blood was discovered and seized based on the information furnished to PW12 by the appellant while in police custody, that the Court of Session came to the conclusion that it was the appellant who caused the death of the victim. We do not find any infirmity in the finding rendered by the Court of Session in this regard. 6. The only point that arises for consideration, therefore, is whether the conviction of the appellant under Section 302 IPC is sustainable in law. 7. No doubt, in the case on hand, the injury inflicted is an incised penetrating wound 3x1cm obliquely placed on the front left side of the neck. The injury was Crl.Appeal No.836 of 2017 -: 6 :- described by PW8, the doctor who conducted the autopsy in his evidence, thus: “Incised penetrating wound 3x1 cm obliquely placed on the front of left side of neck, the lower blunt end being 6 cm outer to midline and 1 cm above the collar bone.” PW8 also deposed that the wound entered into the chest cavity and terminated into the lumen of superior vena cava at its root and that the track of the wound was directed downwards, backwards and to the right and the minimum depth of the wound was 8 cm. The materials indicate that the vein, superior vena cava was cut as a result of the injury and it is on account of that reason that the death occurred. It appears that PW8 was therefore, questioned in cross-examination as to whether a layman would be in a position to know the location of superior vena cava with precision, and the answer given by PW8 to the said question was in the negative. MO4 is proved to be the knife used by the appellant to cause the death of the victim. The length of its blade portion is 18 cm and its width at its base portion near the handle is 3 cm. MO4 has sharpness only on one side as indicated in Ext.P2 mahazar. The description of MO4 as contained in Ext.P2 mahazar suggests that it is a kitchen knife. Crl.Appeal No.836 of 2017 -: 7 :- 8. It is now trite that in order to bring a case within clause “Thirdly” of Section 300, it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must, in addition, be shown that the injury found to be present was the injury that was intended to be inflicted [See Virsa Singh v. State of Punjab , 1958 SCC OnLine SC 37]. As noted, the specific case of the prosecution is that the appellant inflicted the injury on the deceased on account of his enmity towards the deceased for having made fun of him by calling him “ക�ല�ഡ�". The word “ക�ല�ഡ�" though not a dictionary word in Malayalam, it is commonly used to call humorously a smart person to make fun of him. If the word is taken positively, it is an appreciation, and if it is taken negatively, it is an insult. Although the use of the said word is not sufficient, ordinarily, to provoke a person to lose his temper and proceed to the extent of causing the death of the person who called him by the said name, it cannot be said that no one would be provoked by the use of the said word to that extent, i.e. to the extent of causing death. It is subjective to the person concerned. But, at the same time, inasmuch as the motive of the appellant to cause the death of the victim as alleged by the prosecution is only that the Crl.Appeal No.836 of 2017 -: 8 :- deceased called him “ക�ല�ഡ�", according to us, it cannot be held prima facie that the appellant intended to cause the death of the victim. The fact that the appellant used only a kitchen knife to inflict bodily injury also creates a doubt in our minds on the question whether the appellant had any intention to cause the death of the victim. 9. Be that as it may, the version of PW2, the only eye witness who was believed by the Court of Session to hold that it was the appellant who caused the death of the victim as regards the occurrence, is that the appellant and the deceased were talking to each other initially and later, the exchange of words turned into a scuffle and it is in the course of the said scuffle that the appellant stabbed the deceased using the knife carried by him. No doubt, inasmuch as the appellant carried MO4 knife with him, it cannot be said that he had not intended to cause any bodily injury on the deceased. But, inasmuch as the injury was caused in the course of the scuffle, it cannot be said with all certainty that the injury inflicted was the injury intended. The location of the injury namely the clavicle area of the body is not a vital part of the body. But, as noted, the death occurred on account of the injury since the injury was beneath the neck, for otherwise, the Crl.Appeal No.836 of 2017 -: 9 :- superior vena cava, the thin-walled vein responsible for returning deoxygenated blood collected from the body to the right atrium, would not have cut. 10. Can we say that during the course of a scuffle, a layman, who may not have any idea as to the location of the superior vena cava, would have caused such an injury with the intention of inflicting an injury so as to cut the superior vena cava. The answer to the question, according to us, would be a blatant no. If as a matter of fact, the appellant intended to cause the death of the victim or a bodily injury sufficient in the ordinary course of nature to cause the death, he would have certainly inflicted the injury on a vital part of the body like brain, heart, lungs, liver, etc. Since the location of the injury is the clavicle area, we are of the view that the said location was not one intended by the appellant and the injury was one that happened to be landed at that location since it was inflicted in the course of a scuffle. We take this view also for the reason that the appellant was a taller person as compared to the deceased. At any rate, there exists a doubt as to whether the injury inflicted was the injury intended and according to us, the benefit of such doubt should also go in favour of the appellant. As such, we are inclined to hold that the injury inflicted by the Crl.Appeal No.836 of 2017 -: 10 :- appellant was not an injury intended to be inflicted by the appellant. If that be so, he cannot be convicted under Section 302 IPC. We are fortified in this view by the decision of the Apex Court in Gokul Parashram Patil v. State of Maharashtra , (1981) 3 SCC 331, wherein it was held that inasmuch as the accused therein is not expected to know that the superior vena cava vein would be cut as a result of the injury caused by him, although the injury which was found to be sufficient in the ordinary course of nature to cause death, has resulted from a blow with a sharp edged weapon, the same could not be said to have been intended and that therefore, the appellant could not be held guilty of the offence under Section 302 IPC. The said decision was rendered placing reliance on two earlier decisions of the Apex Court, viz, Harjinder Singh v. Delhi Administration, AIR 1968 SC 867 and Laxman Kalu Nikalje v. State of Maharashtra , AIR 1968 SC 1390. Paragraphs 3 and 4 of the decision in Gokul Parashram Patil (supra) read thus: “3. The case of the prosecution was that the appellant attacked the deceased with a knife giving the latter a single blow above the left clavicle where it caused a muscle-deep incised wound having the dimensions 1 1/4 × 1/3 inches. The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut, the damage so caused being sufficient in the ordinary course of Crl.Appeal No.836 of 2017 -: 11 :- ## nature to cause death. 4. The learned Counsel for the appellant has contended that the case does not fall within the ambit of Section 302 of the Code and that the two courts below erred in relying on Virsa Singh v. State of Punjab [AIR 1958 SC 465]. The gist of the dictum of this Court in that case is that if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause thirdly of Section 300 of the Code and that, therefore, its author would be liable to punishment under Section 302 thereof. The question thus is whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death in the present case was an injury intended by the appellant. Our answer to the question is an emphatic no. The solitary blow given by the appellant to the deceased was on the left clavicle — a nonvital part — and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance. This was precisely the view taken in Harjinder Singh v. Delhi Administration [AIR 1968 SC 867] by Sikri, J. and in Laxman Kalu Nikalje v. State of Maharashtra [AIR 1968 SC 1390] by Hidayatullah, C.J. In the former of these cases, the injury in question was a stab wound on the left thigh which had cut the femoral artery and vessels. In the latter, the damage caused consisted of a cut in the auxiliary (sic axillary) artery and veins. In each of the two cases it was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the Crl.Appeal No.836 of 2017 -: 12 :- superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence under Section 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under Part II of Section 304 thereof.” In the light of the discussion aforesaid and the decision of the Apex Court, the conviction of the appellant is liable to be altered to Part II of Section 304 IPC, as it cannot be said that the appellant had inflicted the injury without the knowledge that it is likely to cause death. Even if it is assumed that the appellant intended to cause such bodily injury as is likely to cause death, but not sufficient in the ordinary course of nature to cause death, he can be convicted only for the offence punishable under Part I of Section 304 IPC. From the facts and evidence in the case, we are unable to hold beyond reasonable doubt that the appellant intended to cause a bodily injury which was likely to cause death. As such, according to us, the benefit of the said doubt should go in favour of the appellant. 11. It is seen from the materials that the appellant is undergoing sentence since 24.11.2016 and he was detained earlier also, for the period from 09.09.2004 to 20.11.2004 before he was released on bail. In other words, he has undergone sentence for almost seven and half years. According to us, the said period is sufficient for the offence Crl.Appeal No.836 of 2017 -: 13 :- found to have been committed by the appellant, especially having regard to the fact that the appellant was only 19 years of age at the time of occurrence. 12. In the result, the appeal is allowed in part, the conviction of the appellant is altered to Part II of Section 304 IPC, and the period of imprisonment already undergone by the appellant is treated sufficient for the offence committed. Registry is directed to communicate the above order forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- JOHNSON JOHN, JUDGE. YKB