Appachan @ Joseph P.M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940 CRL.A.No. 247 of 2014** **AGAINST THE JUDGMENT IN SC 609/2007 of ADDITIONAL SESSIONS COURT - II, KASARAGOD DATED 23-01-2014** **CP 71/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDURG CRIME NO. 138/2006 OF Chittarikal Police Station , Kasaragod** ## **APPELLANT:** **APPACHAN @ JOSEPH P.M., S/O MATHAI, AGED 53 YEARS PUTHIYEDATH HOUSE, ADIRUMMAVU, MENOM,KASARAGOD DISTRICT.** **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM -682 031.** **BY ADV.SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE 22.02.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.247/14 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ Appeal under consideration is preferred by the appellant who is the sole accused in S.C. No. 609 of 2007, challenging the judgment of conviction and order of sentence passed by the 2[nd] Additional Sessions Judge, Kasaragod in the above case dated 23/01/2014 by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine amount of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for three months for the said offence. Fine amount was directed to be paid to the wife of the deceased as compensation. 2. The prosecution case is that, on 25/10/2006, at about 07.30 P.M., in front of the shop of one Job (CW4), at a place called Athirumavu, the appellant herein, due to his previous enmity, inflicted multiple stab injuries on the deceased Jose, using a knife and caused his death. Crl.Appeal No.247/14 -:3:- 3. To prove its case, prosecution examined PW1 to PW15 as witnesses, produced and marked Exts.P1 to P33, produced and identified material objects as MO1 to MO15. Ext.D1 is marked by the defence. 4. During trial, the stand taken by the accused/appellant was a complete denial of all evidence and circumstance adduced by the prosecution against him. He pleaded innocence. DW1 to DW3 were examined from his part. 5. Learned counsel appearing for and on behalf of the appellant Sri.M.Sasindran vehemently argued that the appellant herein is innocent. He does not have any criminal antecedents. Prosecution did not prove their case beyond reasonable doubt. Motive is not proved by the prosecution. PW1 and PW2 are close associates of the deceased and their evidence is not believable. FIR is lodged almost 5 hours after the alleged occurrence. There is no pre-meditation coming forth from the evidence adduced by the prosecution. There is no intention to commit murder as well. Alleged recovery is a manipulated one by the police. Even if, for the sake of argument, presence of the appellant is admitted at the place of occurrence, the prosecution case itself would show Crl.Appeal No.247/14 -:4:- scuffle, heated arguments coupled with fight. The appellant was unarmed. The deceased was the actual assailant. The place of occurrence is a forest area. Prosecution did not discharge their burden of proving the source of light as the incident allegedly took place after sunset. There is no independent and impartial witnesses for the prosecution. CW2 was a crucial witness, but prosecution purposefully omitted to examine him. Court below erred seriously in finding the appellant guilty as it failed to appreciate the evidence on record. He pleaded for an acquittal and also in addition toc the prayer for the exception of private defence, he contended that even according to the unproved allegation of the prosecution, at any rate, the case against the appellant may only fall under Exception 4 of Section 300 of I.P.C. , if at all proved by them. 6. To support his argument that the number of injuries inflicted is not material when an incident happens at the heat of passion on a sudden fight, learned counsel relied on the decision of the Apex Court in _**Surinder Kumar v. Union Territory, Chandigarh**_ (AIR 1989 SC 1094) and the decision of the Division Bench of this Court in _**Jaya Madhavan v. State of Kerala**_ (1998 Crl.Appeal No.247/14 -:5:- KHC 241). He also placed reliance on _**Atul Thakur v. State of H.P.**_ [(2018) 2 SCC 496] and _**Surain Singh v. State of Punjab**_ [(2017) 5 SCC 796] to strengthen his arguments. 7. Learned Senior Public Prosecutor Sri.S.U. Nazar argued that the case against the appellant is proved by the prosecution beyond reasonable doubt. The evidence adduced by eyewitnesses inspire full confidence and their evidence is corroborated by medical and other evidence. The deceased was unarmed. Without any provocation, the appellant herein inflicted fatal injuries on most vital parts of the victim and the attack was brutal. The victim was totally silenced. Motive is also proved by the prosecution. Even assuming that there is no proof for motive, his intention is evident from his acts. Court below appreciated the evidence correctly and arrived at a just conclusion which this Court need not unsettle. He pleaded to dismiss the appeal. He relied on the decision in _**Kikar Singh v. State of Rajasthan**_ (AIR 1993 SC 2426) in which the Apex Court held that even in fight unpremeditated and sudden, if the instrument or manner or retaliation is greatly disproportionate to the offence given and cruel and dangerous in its nature, accused cannot be protected Crl.Appeal No.247/14 -:6:- under Exception 4 of Section 300 of I.P.C. 8. On hearing both counsels elaborately and perusing materials placed before us, the question to be considered is whether the trial Court was justified in arriving at its conclusion which is under challenge now. 9. Evidence adduced by the prosecution, in short, are as under:- PW1 is cited as an eyewitness to the incident. He gave Ext.P1 First Information Statement to the police and identified MO1 shirt and MO2 lunki worn by the deceased Jose. He also identified MO3 shirt and MO4 dhothi of the appellant/accused also. PW2, PW3 and PW4 are also examined as other occurrence witnesses. PW4 is an attestor to Ext.P2 seizure mahazar. He is also an attestor to Ext.P3 receipt as per which the gold chain was released to the wife of the deceased. PW5 is an attestor to Ext.P4 seizure mahazar prepared for the seizure of MO1 knife. PW6 is an attestor to Ext.P5 inquest report. PW7 is an attestor to Ext.P6 scene mahazar. MO4 and MO6 were seized at the time of preparation of Ext.P6. PW8 took the body of the deceased for postmortem. PW9 is another police personnel who is an attestor Crl.Appeal No.247/14 -:7:- to Ext.P7 seizure mahazar prepared for the seizure of MO2, MO3 and MO7. He is an attestor to Ext.P9 seizure mahazar prepared at the time of taking over Ext.P8 series photographs taken by PW10. PW11 is an attestor to Ext.P11 mahazar by which Ext.P10 series photographs of the corpse and its negatives were produced by PW34. PW12 is the Special Village Officer, Malom who inspected the scene of occurrence and prepared Ext.P12 site plan. PW13 is the Doctor who conducted autopsy of the victim on 26/10/2006 and issued Ext.P13 postmortem certificate. According to him, the cause of death of Jose was penetrating injury on the chest involving heart and lungs. PW14 is the S.I. of Police, Chittarikkal who recorded Ext.P1 FIS of PW1 and based on which Ext.P1(a) FIR was registered. Ext.P5 inquest report is prepared by him. PW15 is the Circle Inspector of Police, Vellarikundu who conducted the investigation. He prepared Ext.P6 scene mahazar. He arrested the appellant/accused on 28/10/2006 at 04.30 A.M. for which Ext.P22 is the arrest memo and Ext.P23 is the remand report. Based on the confession statement Ext.P23 of the appellant/accused, MO1 knife was seized under Ext.P4 seizure mahazar. Ext.P28 is the copy of the forwarding note for sending the material objects for Crl.Appeal No.247/14 -:8:- chemical examination. Ext.P33 is the chemical examination report. 10. During 313 examination, the appellant/accused denied all incriminating circumstances levelled against him by the prosecution. He, in his written statement under Section 313 (5), submitted that deceased Jose was engaged in tapping work in the estate of Adv.Joy for long, prior to the alleged incident. Since the deceased was not doing his work properly, his service was terminated. He was under the impression that it is the appellant/accused who was responsible for the loss of his job. So, the deceased, PW1 and Jinesh Mathew used to harass him. On 25/10/2006, in the evening, after supplying milk at Kattamkavala junction, the appellant had reached the house at 06.00 P.M. According to the appellant, on 25/10/2006 at late night only he came to know that deceased Jose and his friends PW1 Jinesh Mathew and others came to the Kattamkavala junction in a jeep in a drunken condition and they quarrelled with people who were watching television and in the scuffle, deceased Jose had received injury and in hospital, he succumbed to the injuries. The case is a false one and it is built up at the instance of PW1 and a Crl.Appeal No.247/14 -:9:- police officer who is the brother-in-law of the deceased under the impression that the appellant was also present at the place of occurrence at the time when the incident had taken place. He stated that he has no connection with the alleged incident. 11. As regards to cause of death, there is no dispute that the death of Jose was a homicide. Depositions of occurrence witnesses PW1 to PW4 coupled with the medical evidence of PW13 who issued Ext.P13 postmortem certificate and Ext.P5 inquest report would show that the victim died of stab injuries. PW13 deposed that the deceased died due to penetrating injury of the chest involving heart and lung. Court below is justified in its conclusion regarding cause of death of the victim. 12. Whether the said injuries that resulted in the death of the victim is inflicted by the appellant herein is the crucial question. Court below mainly relied on the oral evidence of PW1 to PW4 to arrive at its conclusion. Trial Court is of the view that the said ocular version is corroborated by medical, recovery and other evidence. To arrive at a just conclusion, it is necessary to thoroughly go through the evidence of these witnesses in detail. 13. PW1 deposed that, on 25/10/2006 at about 07.30 P.M., Crl.Appeal No.247/14 -:10:- while he was watching television in the room adjacent to the grocery shop of PW4, he heard a screaming voice from the nearby road. As he rushed to the spot, he saw the appellant Joseph and the deceased Jose engaged in an altercation and scuffle. Jose fell down and the appellant was lying on the body of Jose and it is his version that he had seen the appellant pressing the neck of the deceased. Himself, PW2 and others separated them from scuffle. Again they entered into scuffle and some people gathered there separated them. For the third time also, they engaged in scuffle near the electric post. People gathered and separated them. The shirt of the appellant was torn and he himself forcefully removed it and threw it near the electric post. Thereafter, the appellant went into the shop of CW2 Job. According to PW1, he asked the deceased to go home. Since he lost his gold chain during scuffle, the deceased proceeded towards the appellant asking “where is the chain?” At that time, the appellant came out of the shop of CW2 hiding a knife behind him and stabbed on the abdomen of the deceased. The appellant withdrew the knife and stabbed the victim 2 to 3 times again. PW1 added that on getting stabbed, the deceased caught hold on Crl.Appeal No.247/14 -:11:- the appellant's hand and bowed down. At that time, the appellant caught hold of the neck of the deceased and stabbed at the chest of the victim two times. Pushing the victim down, the appellant ran away with the knife. He witnessed the incident with the help of light from electric post and petromax light from nearby shops. It is the version of PW1 that they took the injured to the hospital in a jeep and he was declared dead in Pariyaram Medical College Hospital. Ext.P1 is the F.I. Statement given by him to police. Next day, he had shown the place of occurrence to the police. The reason for the crime, according to him, is the dispute in connection with job. He stated that the appellant stabbed the deceased using a knife taken from the shop of CW2. He identified MO1 as the knife. He also identified MO2 shirt and MO3 lungi of the deceased. He further identified MO4 shirt and MO5 dhothi worn by the appellant at the time of incident. During crossexamination, he deposed that his brother-in-law is a police officer. It is also brought out that he had not given a statement to police that he had seen the appellant pressing the neck of the victim and lying over him. He reiterated that he had seen the appellant catching hold of the neck of the deceased and stabbing at the Crl.Appeal No.247/14 -:12:- chest of the victim two times. The same portions were put to the investigating officer and he stated that PW1 had not given the above-said statements to him. But it can be seen that none of these are properly brought in evidence as contradiction by the defence. 14. PW2 stated that on the date of incident, while he was watching T.V. in the shop, he heard a hue and cry. As he looked back, he saw the appellant and the deceased lying on the roadside holding each other. The appellant was tightly holding the neck of the victim. It is his version that himself, PW1 and PW6 separated both of them. Again they entered into scuffle and fell on the road, the appellant on top of the victim. There was bleeding from the head of Jose. It is his version that they again pacified them. Again they continued scuffle and fell near the electric post. At that time, the shirt of the appellant was torn. PW2 again separated them. The appellant threw his shirt there and went into the shop of CW2. PW2 further states that the victim went near to the shop of CW2 asking “ where is my chain?” The appellant stabbed on the abdomen and chest of the victim with a knife taken from the shop. Thereafter, the appellant ran away Crl.Appeal No.247/14 -:13:- with the knife. According to him, the reason for the crime is dispute in connection with tapping job. He witnessed the incident with the help of light from electric post and petromax light from nearby shops. During cross-examination, PW2 stood firm in his earlier statements and added that on getting first stab, the victim bent down and again he was stabbed 3 to 4 times. Nothing is brought in cross-examination to discredit his version. 15. PW3 deposed that there was scuffle between the appellant and the deceased. PW1 and PW2 pacified them. He deposed that during second scuffle, he heard the victim saying that his head was injured and that his chain was missing. It is his version that he lighted the torch in his hand and found the chain. He entrusted the same to Jimmy. Jose was taken to hospital. During cross-examination he deposed that by the time he was searching for the chain, the stabbing was over. Attempt was made by the defence to bring out that though PW3 had tried to hand over the chain to the victim, without receiving it from PW3, the victim was proceeding towards the appellant. PW3 denied the said suggestion. Defence did not bring out the same in evidence by way of contradiction as well. Admittedly, PW3 did not witness Crl.Appeal No.247/14 -:14:- the overt acts. But he deposed as to the crucial circumstance prior and subsequent to the incident. 16. PW4 deposed that the incident happened on 25/10/2006 at 07.30 P.M. While packing articles in his shop, he heard commotion from the road. He saw the appellant and the victim engaging in a scuffle. PW1, PW2 and CW6 pacified them. Again they fought and the victim fell on the road and the appellant fell over the victim. PW4 also helped to pacify them. He asked them to go home. Again for the third time, scuffle ensued near an electric post. PW1, PW2 and others again intervened and separated them. The dress of the appellant was found to be torn. He left his dress there and went to the tea shop of CW2 Job. Later he was told that the appellant had stabbed the victim and he was asked to call a jeep to take the victim to the hospital. PW3 handed over a broken chain to PW4. Ext.P2 is the seizure mahazar prepared at the time of handing over of chain. Ext.P3 is the receipt for the handing over of the said chain to the wife of the victim. During cross examination, he stated that there was strained relationship between the appellant and the victim regarding the tapping job at Advocate Joy's place. He himself had Crl.Appeal No.247/14 -:15:- spoken to both of them individually. He stated that he had asked the appellant to give the job back to the victim. He stood firm in his version that there were scuffle and he pacified them once. According to him, both the appellant and the deceased are known to him. 17. Coming to the appreciation of evidence, one of the contentions raised by the learned counsel for the appellant is that there is a delay of more than 5 hours in lodging FIR. He challenged the credibility of the FIR as it is a concocted, manipulated document. But we are unable to agree with that contention. The incident occurred at 07.30 P.M. on 25/10/2006. The injured was taken to hospital by witnesses including PW1 who gave FIS to police in the midnight at 12.30 A.M. The injured was taken to Pariyaram Medical College Hospital which was 40 k.m. away from the place of occurrence. It is also on record that the injured was taken to a private hospital in the mean time. Only after reaching the Pariyaram hospital, that PW1 was told by the Doctor that the victim is no more. It is at the instance of the Doctor that PW1 went to police station to give F.I. Statement. It can also be seen that the FIR reached the Court on 26/10/2006 at Crl.Appeal No.247/14 -:16:- 10.30 A.M. We are in agreement with the trial Court that there is nothing on record to show that the FIR is fabricated or that any prejudice is caused to the appellant in respect of the same. 18. On further appreciation, it can be seen that the version of DW1 to DW3 is thoroughly artificial and it does not inspire confidence. Even according to the defence witnesses, the presence of PW1 and PW2 is admitted. They stated that there was scuffle between the appellant and the victim. They did not attempt to pacify them. These witnesses do not have a case that other witnesses did not pacify the appellant and the deceased from the scuffle. Defence witnesses deposed that the deceased, PW1 and PW2 were drunk and they came together there. There is nothing in the medical evidence to show that the deceased was drunk during the relevant time. The consistent case of the appellant during trial was that he was not even present at the scene of occurrence at the time of incident. The evidence on record completely negate the said contention and it is proved beyond reasonable doubt that the appellant herein is the one who inflicted fatal injuries on the deceased using MO1 knife. 19. In our view, the evidence of occurrence witnesses PW1 Crl.Appeal No.247/14 -:17:- and PW2 would reveal that it was the appellant who inflicted the fatal stabs on the victim on the date of incident. There is no material omission or contradiction in their deposition. PW3 and PW4 corroborate their version. Eyewitnesses deposed that there was sufficient light available at the place of occurrence. Apart from a mere allegation, nothing is brought in evidence by the defence to show that PW1 did not witness the incident. Nothing is available on record even to assume that at the time of incident when PW2 and PW3 were watching the T.V., PW1 was present with them, and was not witnessing the crime, as alleged by the defence. The version of these occurrence witnesses is further corroborated by the medical evidence already detailed above. The weapon is recovered at the instance of the appellant which is found to be blood-stained. 20. Though such a contention was not taken before the trial Court, the counsel for the appellant made a serious attempt to convince us based on the available evidence on record that the case of the appellant would fall under the general exception of rightful exercise of private defence. He argued that there was scuffle, not once but thrice. The appellant was attacked by the Crl.Appeal No.247/14 -:18:- deceased. He left his shirt and went to the shop of CW2 to escape. But the deceased again proceeded to the appellant which created a reasonable apprehension in his mind that death or grievous hurt might be caused to him. The appellant was unarmed. Motive for attack is not with the appellant but with the deceased as he is complaining of losing job because of the appellant. Number of injuries is not a criteria as everything happened within a short span of time and under sudden provocation and out of heat of passion and fear. He vehemently argued that the case at hand is a clear case of private defence and without prejudice and he contended that at no stretch of imagination, the case would fall under Section 302 of IPC. There was no pre-meditation or intention. The appellant was unarmed. There was scuffle and attack over the appellant. The circumstance in its entirety would show that the case utmost would, if at all, fall under the second limb of Section 304 of IPC. The law relating to the right of private defence of body to the extent of causing death is elaborated in Section 100 of I.P.C. and it is as under: _“_ _**100** . When the right of private defence of the body_ Crl.Appeal No.247/14 ## -:19:- _extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—_ _First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;_ _Secondly —Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;_ _Thirdly— An assault with the intention of committing rape;_ _Fourthly —An assault with the intention of gratifying unnatural lust;_ _Fifthly— An assault with the intention of kidnapping or abducting;_ _Sixthly — An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release._ _Seventhly — An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.”_ 21. We have already found that the appellant herein is the one who inflicted the fatal stabs on the victim. Of course, the Crl.Appeal No.247/14 -:20:- motive is not proved by the prosecution. Evidence on record would show that the victim was in conflict with the appellant for his not reinstating him to the tapping job at Adv. Joy's house. Prosecution did not prove how the altercation between the two started and who gave the provocation. There is proof for scuffle. Thrice, they were separated by others including prosecution witnesses. The deceased was injured on his head during the scuffle. Initially, both of them were unarmed. But it can be seen that the appellant went inside the shop of CW2 and took a knife in his hand and he approached the victim by keeping it behind him. The victim was unarmed. There is absolutely nothing to show that there was any occasion for the appellant creating a reasonable apprehension of death or grievous hurt or any of the circumstances enumerated under Section 100 I.P.C Had the unarmed victim been shown the knife, he would not have proceeded to the appellant for asking the chain. To the extent required to prevent harm, the appellant could have exercised his defence. Law does not permit aggression in the name of private defence. The case at hand would clearly show that the appellant far exceeded, if at all it is considered a case of private defence for Crl.Appeal No.247/14 -:21:- the sake of argument, the required force to be exerted to avoid harm in normal human conduct under such situation. Repeated stab injuries were inflicted on the unarmed victim and that too on vital parts like abdomen and chest. It was aggression and intentional infliction. The case cannot be treated as one covered under the general exception of private defence enumerated in Section 100 of I.P.C. 22. It is true that certain other factors are also brought in evidence. As already stated, prosecution did not prove the genesis of the incident which culminated in this unfortunate incident. Motive alleged by the prosecution against the appellant is not proved. On the other hand, it is in evidence that the deceased had issues with the appellant in connection with his losing of tapping job at Adv. Joy's house. The victim was not in good terms with the appellant as the appellant was not willing to leave the job and reinstate the victim to the job instead of him. The facts of the case and the evidence on record would compel us to see whether the case of the appellant would fall under any of the Exceptions of Section 300 of I.P.C. as argued by the learned counsel for the appellant. Exception 4 of Section 300 of I.P.C. -:22:- Crl.Appeal No.247/14 ## reads as follows: ## _**“Exception 4 – When culpable homicide is not**_ _**murder :** - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner._ _Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault”._ 23. It is proved that during the incident there was scuffle at least thrice. Sudden quarrel and a sudden fight ensued out of heat of passion. It is also in evidence that though unarmed, the victim was the one who rushed to the appellant. Evidence shows that there is no pre-meditation for the crime. But it can be seen that subsequently, intention had developed in the mind of the appellant. He went to the shop of CW2 and picked up MO1 knife. As the victim was approaching him, he came out of the shop by hiding the knife behind him and stabbed the victim with multiple times on his abdomen and chest. Altogether 6 injuries were inflicted on the unarmed victim. Evidence of PW13 would show the following ante-mortem injuries on the corpse of the victim:- _“1. Spindle shaped incised penetrating wound, 4x1.5 cm, vertical with slight obliquity on the left side of_ Crl.Appeal No.247/14 -:23:- _front of chest, the upper outer end being 3.5 cm to the left of midline and 7.5 cm below the left nipple in the 7'o clock position. Slight marginal contusion present. The wound entered the chest cavity by cutting the 6[th] and 7[th] ribs and the corresponding intercostal muscles, transfixed the heart 2 cm above its apex (entrance wound 3x0.8 cm and exit wound 5x1 cm) through both ventricles and interventricular septum, transfixed the inner aspect of lower lobe of lung and terminated by making a superficial cut in the posterior chest wall, close to the spine. The wound was directed backwards, upwards and to the right for a depth of 15 cms. Left chest cavity contained one litre of blood. Left lung was collapsed._ _2. Spindle shaped incised penetrating wound with slight marginal contusion, 3.5 x 1 cm, obliquely placed on the lower part of right side of chest, the upper inner end being 4 cm to the right of midline and 8 cm below the nipple, in the 5'o clock position. The wound entered the abdominal cavity by cutting the cartilage of 8[th] rib at its inner end, transfixed the left lobe of liver (3.5x0.5 cm) and terminated by puncturing the front wall of stomach. The wound was directed backwards, downwards and to the left for a total minimum depth of 5.5 cms. There was no evidence of any bleeding._ _3. Muscle deep incised wound, 19 x 5.5 cm, involving the inner aspect of left elbow, upper arm and forearm._ _4. Spindle shaped incised penetrating wound, 4.5 x 1.3 cm, horizontally placed on the abdomen, its left_ Crl.Appeal No.247/14 -:24:- _end being in the midline, 3 cm below the umbilicus. Loops of small intestine were protruding out through the wound. There was no blood in the abdominal cavity. All internal organs were intact._ _5. Spindle shaped incised stab wound 3x0.8x3.5 cm, obliquely placed on the back of trunk, the inner lower end being in the midline, 10 cm above the natal cleft._ _6. Incised wound 4.3x1.3x3.5 cm, obliquely placed on the back of left side of chest, the upper inner end being 11 cm to the left of midline and 5 cm below the angle of shoulder blade._ _7. Abrasion 4.5x4cm, on the back of right side of chest 5 cm below the top of shoulder._ _8. Superficial laceration 1cm long over the left parietal eminence of head. Skull and brain were intact.”_ 24. The learned counsel for the appellant placed reliance upon the judgment in _**Surinder Kumar**_ (supra) and the judgment of the Division Bench of this Court in _**Jaya Madhavan**_ (supra). The argument is that, while considering Exception 4 to S.300, the Court has to satisfy that it was a sudden fight, there was no premeditation, the act was done in a heat of passion and the assailant had not taken any undue advantage or acted in a cruel manner. Relevant portion of the judgment in _**Surinder Kumar**_ (supra) reads as under:- Crl.Appeal No.247/14 -:25:- _**“6** . To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremediated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. xxxx”._ 25. In fact, in _**Surinder Kumar's**_ case (supra), the deceased and PW2 had abused the accused in the presence of his sister in a matter relating to vacating possession of a kitchen which led to heated argument. The deceased threatened to lock up the kitchen by removing the utensils. In the course of the argument, PW2 took a knife from his pocket. Accused immediately went to the adjoining kitchen and returned with a knife. A simple injury was caused to PW2. Thereafter a scuffle occurred with the deceased, who suffered two minor injuries and Crl.Appeal No.247/14 -:26:- a fatal blow was inflicted below the nipple which was the cause of death. In that case, the Apex Court held that merely because three injuries were caused to the deceased, it cannot be said that the accused acted in a cruel and unusual manner and accordingly, the offence u/s 302 was converted to one u/s 304 Part I of I.P.C. _**Surinder Kumar's**_ (supra) judgment was followed in _**Jaya Madhavan**_ (supra). There cannot be any quarrel about the above proposition. The question is, whether in the facts and circumstances of the above case, an offence had been made out u/s 302 of I.P.C. or rather the offence would come under Exception 4 of S.300. The learned Public Prosecutor placed reliance upon a judgment in _**Kikar Singh v. State of Rajasthan**_ [(1993) 4 SCC 238]. In this case, the Apex Court after referring to the landmark judgment in _**Virsa Singh v. State of Punjab**_ (AIR 1958 SC 465) held that when the appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those injuries and therefore he could be convicted and sentenced for offence u/s 302 I.P.C. Paragraphs 11 and 12 are relevant, which reads as under:- _**“11** . In Virsa Singh v. State of Punjab, AIR 1958 SC_ Crl.Appeal No.247/14 -:27:- _465 a leading forerunner on the point, this Court held that the prosecution must prove that bodily injury is present. The nature of the injury must be proved. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was riot accidental or unintentional, or that some other kind of injury was intended. Once these there elements are proved to be present, the Court must further proceed with the enquiry and found that the prosecution has proved that the injury described is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution the offence of murder falls under clause thirdly of Section 300. It matters not that there was no intention to cause death or that there was no intention even to cause death in the ordinary course of nature. Once it is proved that the intention to cause the bodily injury actually found to be present, the rest of the enquiry is purely objective to be deduced by inference. But where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. The question whether there is intention or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if_ Crl.Appeal No.247/14 -:28:- _serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the accused intended to inflict the injury in question. It was held in that case that the offence was one of murder falling under clause thirdly of Section 302. In Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, the bodily injury consisted of tying up the hands and the feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform.All these acts were deliberate acts which had been pre-planned, and, therefore, this Court held that the acts satisfied the objective test of clause 3 Of S-300 and were held to be sufficient in the ordinary course to cause death. Accordingly it was one punishable under S. 302._ _**12** . It is not necessary that death must be inevitable or in all circumstances the injury inflicted must cause death. If the probability of death is very great the requirement of clause third, is satisfied. If there is probability in a less degree of death ensuing from the act committed the finding should be of culpable homicide not amounting to murder. The emphasis is sufficiency of injury to cause death. A judge must always try to find whether the bodily injury inflicted was that which the accused intended to inflict. The intention must be gathered from a careful examination of all the facts and circumstances in a given case. The citus at which the injury was inflicted, nature of the injury, weapon used, force with which it was used are all relevant facts. We find from the facts that the appellant inflicted fatal blow, i.e. 3rd injury_ Crl.Appeal No.247/14 -:29:- _severing the neck after the deceased had fallen on the ground due to impact of the first injury on parietal region. The third injury is proved to be sufficient in the ordinary course of nature to cause death. Even otherwise death is inevitable. When the appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those two injuries, though the first injury may be assumed to have been inflicted during the course of altercation. Thus we hold that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under S.302, I.P.C.”_ 26. In order to claim the benefit of Exception 4 to S.300 of I.P.C., necessarily, the four conditions referred to in _**Surinder Kumar's**_ case (supra) have to be satisfied. Apparently this is a case where there was a fight between the deceased and the accused and friends interfered in the matter and they were pulled apart. The altercation and scuffle continued for some time and ultimately the accused went into the shop room of CW2. Thereafter the deceased went in search of his chain and he reached the shop of CW2 and asked for his chain as if the accused had taken the chain. At that time, the accused came out with a knife and inflicted the injuries. Even assuming that the accused had committed the aforesaid act in the heat of passion, Crl.Appeal No.247/14 -:30:- the question is, whether he had taken any undue advantage or acted in a cruel manner. During cross-examination of PW2, he said that after the first stab, deceased had bent down and thereafter the accused would have inflicted three-four injuries. In the post-mortem certificate, there are four spindle shaped incised penetrating wounds. Injury No.1 was on the left side of the front of chest, injury No.2 was obliquely placed on the lower part of right side of chest, injury No.4 was horizontally placed on the abdomen and injury No.5 was obliquely placed on the back of trunk. There were two incised wounds, injury No.3 which was a muscle deep incised wound and injury No.6 on the back of left side of chest. PW1 in his chief examination had stated that when the deceased asked the accused for the chain, accused came from CW2's shop with a knife hiding it behind him and inflicted a stab on his abdomen. He took back the knife and stabbed twothree times. Jose (deceased) caught hold of the hand of the accused and bent down. At that time, the accused caught hold of the neck of deceased and inflicted two injuries on his chest. In cross-examination, he reiterated that he had stated in Ext.P1 and in his further statement that the accused came from the shop of Crl.Appeal No.247/14 -:31:- CW2 hiding the knife behind him. No further question was put to him to treat the said statement as an omission or contradiction. He reiterated that after getting an injury on his abdomen, deceased caught hold of the hand of the accused and bent down. PW1 however denied the fact that it may not be correct to say that Jose (deceased) had caught hold of the hand of accused. While he was standing, he was stabbed and while he was trying to sit down, he was stabbed on his abdomen several times. He stated in Ext.P1 and in his further statement that several injuries were inflicted on the abdomen. During his further statement, he had stated that while Jose was bending down, he was stabbed by the accused. On an overall appreciation of the evidence of PW1 and PW2, it is rather clear that deceased Jose was unarmed. He only came in search of his chain. Accused who had gone to CW2's shop came down from the shop hiding a knife and inflicted injuries on the deceased. While PW15, the investigating officer was examined, the only omission in the evidence of PW1 that was asked was, after Jose suffered an injury on his abdomen, he caught hold of the hands of accused, then the accused caught hold of the neck of deceased and inflicted injuries on his chest. Crl.Appeal No.247/14 -:32:- According to PW15, what PW1 and PW2 stated was that they saw the accused inflicting injuries on the abdomen, chest and back of the deceased. There is no other omission or contradiction. Therefore, the only omission which had been pointed out as far as the evidence of PW1 and PW2 are concerned is that the accused caught hold of the neck of deceased and thereafter pulled him up and inflicted injuries. But it is to be noticed that this is an instance where the deceased was unarmed. Already they had a scuffle and the people in the locality had interfered and diffused the situation. When the deceased had gone to the shop of CW2 where the accused had gone and asked for his chain, there was no reason for the accused to come out of the shop hiding the knife. If he had shown the knife, probably the deceased would have run away from the scene. Accused came near to the deceased and stabbed him several times. An unarmed person was stabbed six times and on vital parts of his body. This cannot be an instance where the act of the accused could be termed as one coming under Exceptions 4 to S.300 as the infliction of such multiple injuries by itself is a cruel act, taking into consideration the factual aspects involved in the matter. Crl.Appeal No.247/14 -:33:- In the light of the aforesaid discussion, we are of the view that the trial Court had rightly found the accused guilty for the offence u/s 302 of I.P.C. In the result, the appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge