Baiju @ Kattadi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943 CRL.A NO. 1034 OF 2016** **CRIME NO.1249/2011 OF Kalady Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT IN SC 664/2013 OF ADDITIONAL SESSIONS COURT, MOOVATTUPUZHA DATED 5.5.2015 CP 4/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PERUMBAVOOR APPELLANT/ACCUSED:** BAIJU @ KATTADI AGED 32 YEARS S/O.DEVASSY KUTTY, PALATTI HOUSE, MARIGIRI VADAKKUM BHAGOM, MANJAPRA VILLAGE. BY ADVS. SRI.GEO PAUL SRI.S.ASHOK KUMAR. SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SRI.SANU MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED C.I. OF POLICE, KALADY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 018. SRI.V.S.SREEJITH, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2021, THE COURT ON 10.01.2022 DELIVERED THE FOLLOWING: Cr.Appeal 1034/2016 2 K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------Crl.Appeal No.1034 of 2016 ------------------------------------Dated this the 10[th] day of January, 2022 J U D G M E N T ## Jayachandran, J. 1. The sole accused in S.C No.664/2013 of the Additional Sessions Court, Muvattupuzha is the appellant herein. As per judgment impugned dated 5.5.2015, the appellant/accused was found guilty of the offence under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-, with a default clause for rigorous imprisonment for a further period of six months. Upon realisation of the fine amount, a sum of Rs.50,000/- was directed to be given to the father of the deceased as compensation under Section 357(1) Cr.PC. ## 2. The Prosecution case :- The accused borrowed some amount from the deceased. The deceased demanded to pay it back, which was not 3 Cr.Appeal 1034/2016 relished by the accused. On 24.11.2011, by about 7 p.m., the accused, Pw2 and Pw3 were having a chat in the tea shop of Pw5. Pw1, while returning after the day’s work, joined them. After a while, the deceased came there and expressed his anguish over the accused speaking ill of him for demanding back the borrowed amount. Infuriated by this, accused went inside the tea shop, took MO1 knife and stabbed the deceased, to which he succumbed, thus committing the offence under Section 302 of the Penal Code. 3. Heard Smt.P.Radhika Rajasekharan, learned counsel for the appellant and Sri.V.S.Sreejith, learned Public Prosecutor. ## 4. Appellant’s arguments :- Learned counsel for the appellant contended that the judgment impugned cannot be sustained in law. Interested are the testimonies of PW1 to 3, the close friends of the deceased, planted only to support the prosecution version. Their depositions consist of Cr.Appeal 1034/2016 4 serious inconsistencies and contradictions, rendering it unreliable to rest a conviction for offence under Section 302. PW1 is the son of the younger brother of father of deceased. PW1, PW2 and PW3, all accompanied the brother and father of the deceased to adduce evidence before the Sessions Court, from which their consort to implicate the accused is manifest. Learned counsel pointed out that the overt act of a stab and a consequent injury on the stomach is not spoken of by PW1 in Ext.P1 First Information Statement. A single stab on the chest of the deceased spoken of in Ext.P1 F.I.S. is seen improved only to tally with the postmortem injuries noted. Before the court, the situs of injury is stated to be below the throat, which also varies from the version spoken to by PW1 in the F.I.S. Similarly, the evidence of PW1, of accused employing an abusive word, is not seen stated in Ext.P1 F.I.S., which, again, is a relevant omission. Learned counsel seriously assailed the failure of the investigating officer in discarding a palm print of blood in the wall on the western side Cr.Appeal 1034/2016 5 of the scene of occurrence. The assistance of a finger print expert was not availed. No credence be attached to recovery of MO1 knife under Section 27 from a small canal (without any water therein); an open public space with the knife quite within the visibility of any person, who passes by. No identifying mark of the knife was given by any of the witnesses in their former statements. That apart, they were shown MO1 knife at the police station, wherefore, the so claimed identification of MO1 knife before court is of no consequence, whatsoever. The availability of light at the scene of occurrence is not established by the prosecution. The wattage of the bulb in the tea shop is not proved. Ext.P12 scene plan does not depict the availability of streetlight in the scene of occurrence. In short, the guilt as against the appellant/accused is not proved beyond reasonable doubt, wherefore, the conviction of the accused for offence under Section 302 of the Penal Code warrants interference. 6 Cr.Appeal 1034/2016 5. Learned counsel thereafter seriously canvassed the proposition that even if the accused/appellant is found guilty, the offence under Section 302 is not attracted at all. The accused is entitled to Exception No.4 carved out to Section 300, in which case, he is liable to be punished only under Section 304. Learned counsel relied upon the following judgments in support of her contentions: - (1) Anand Ramachandra Chougule and Another v. Sidarai Laxman Chougala and Others [(2019) 8 SCC 50]. - (2) Baby Joseph @ Baby v. State of Kerala [2018 KHC 465]. ## 6. Arguments of the Public Prosecutor :- Three eye witnesses, PW1 to PW3, proved the prosecution case to the hilt is the submission of the learned Public Prosecutor. The evidence tendered by PW1 to PW3 is fully convincing, negating the possibility of any reasonable doubt. This, coupled with the detection of B positive blood (blood group Cr.Appeal 1034/2016 7 of the deceased) in MO7 shirt and MO8 lungi worn by the accused at the time of occurrence would fully establish the guilt of the accused. Minor inconsistency elicited in cross examination, not touching the core of the prosecution case, cannot render the version of eye witnesses suspect, submits the Prosecutor. The alleged omission of PW1 in not referring to the injury at on the stomach in Ext.P1 F.I.S. is inconsequential, in as much as the overt act causing the fatal injury is very much spoken to by PW1 in Ext.P1 F.I.S. As it is well settled, a first information statement is not an encyclopedia of events constituting the crime in question. In support of his contentions, the learned Public Prosecutor relied upon the following judgments: - (1) Manoj Suryavanshi v. State of Chattisgargh [(2020) 4 SCC 451]. - (2) Leela Ram (D) through Duli Chand v. State of Haryana and Another [(1999) 9 SCC 525]. - (3) Sanjeev Kumar Gupta v. State of Uttarpradesh (Now State of Uttarakhand) [(2015) 11 SCC 69] . Cr.Appeal 1034/2016 8 7. We, faced with the rival versions of the prosecution and defence, will now analyse the evidence to conclude whether the case has been proved beyond reasonable doubt or not. Since prosecution propounds PWs 1 to 3 as direct eye witnesses to the incident, we will first examine their evidence. 8. PW1, one Tibins Paul, gave the first information statement. When examined as PW1, he deposed that on 24.11.2011 at about 7 p.m., he was returning home after his work. When he crossed the Marygiri Church Junction, he saw the accused, PW2 (Jolly) and PW3 (Jomon) engaged in a chat in front of the teashop of PW5 (Stephen). PW1 stopped his bike, went to the teashop and joined them. Then, deceased (Biju) came on the road in front of the teashop and questioned the accused, as to why he spoke ill of him to various persons for demanding back the money borrowed by accused. The deceased also told the accused to speak, then and there, if the accused wants to say anything Cr.Appeal 1034/2016 9 about the deceased. Then, the accused abused the deceased with an obscene word and went inside the teashop. He immediately came back with a knife in his hand, and on the road, stabbed the deceased, on his stomach causing an injury there. The deceased caught hold of the knife, whereupon the accused withdrew the knife, causing injury on the right palm of the deceased. Thereafter, the accused again stabbed the deceased below his throat. The deceased fell down, while the accused ran away, towards the junction, holding the knife. PW1, PW2 and PW3, rushed to the victim, removed his dhoti and tied the same at the wound site. The deceased was taken to the Little Flower Hospital in the car of PW4, Justin. But he was declared dead, by 7.30 p.m. PW1 would state that enmity was prevailing between the accused and the deceased on account of the deceased demanding back the amount borrowed by the accused, which according to PW1 is the motive for the crime. PW1 identified Ext.P1 F.I.S. given by him, as also, MO1 knife and MO2 series shirt and dhoti/lungi worn by the accused Cr.Appeal 1034/2016 10 at the relevant time, besides identifying the accused in the court. 9. In cross examination, utterance of the obscene word by accused, as spoken to by PW1 before the Court, is brought out as an omission in Ext.P1 F.I.S. It was elicited that no identifying mark of MO1 knife was stated by PW1. PW1 would state in cross examination that he had seen MO1 knife earlier also, which, however, is not spoken of by him in Ext.P1 F.I.S. Another omission brought out, a quite relevant one according to the defence, is with respect to the stab injury on the stomach of the deceased, which does not find a place in Ext.P1 F.I.S. preferred by PW1. The rest of the cross examination assumes significance only in the context of the offence attracted, i.e. whether under Section 302 - as claimed by the prosecution - or 304 as alternatively claimed by the defence - which will be discussed later in this judgment. Cr.Appeal 1034/2016 11 10. An analysis of the evidence tendered by PW1 would indicate that his narration of the incident inspires full confidence in the mind of the court. He spoke about the incident with reasonable clarity in the sequence in which it happened. He specifically deposed that he saw the accused going inside the teashop hurling abuse against the deceased, coming back with MO1 knife and stabbing the deceased. True, PW1 did not refer to the first stab attempt on the stomach of the deceased in Ext.P1 F.I.S. However, the same, by itself, cannot make the evidence of PW1 suspect. The primary purpose of F.I.S is to set law in motion by reporting the crime to the law enforcing agency. It is neither logical nor feasible to catalogue the ingredients of a first information statement. In some cases, the names of the assailants and the victim may be known to the first informant and in some other cases, not. In Indian conditions, where the people are reluctant to approach the police, we cannot expect an informant to give a graphic narration of the things, which they have Cr.Appeal 1034/2016 12 witnessed. It is likely that they will be perplexed and bewildered seeing the crime, more so, when it is ghastly in nature. Therefore, if the informant gives a genuine account of what he saw, which amounts to a crime, then such an information cannot be found fault with. In the instant case, PW1 specifically identified the deceased and the assailant. He spoke about what transpired in front of the teashop of PW5 on the fateful day. He also spoke about other witnesses present there, as also, the motive of the crime. He specifically referred to the weapon used and the manner in which it was procured by the accused. He further referred to the fatal stab injury inflicted by the accused on the chest of deceased. In such setting, non-reference to an attempted stab, which did not cause any serious injury on the stomach, cannot be reckoned in law as a fatal omission, so as to doubt the veracity of PW1’s evidence, more so when PW13 Doctor, who conducted the autopsy, opined that injury No.1 on the stomach can be caused by a finger nail even, thus establishing that the said injury is Cr.Appeal 1034/2016 13 a minor one. The same logic would hold good in respect of the alleged omission in Ext.P1 F.I.S., regarding the obscene word spoken by the accused to the deceased. 11. PW2 and PW3 are one Jolly and Jomon respectively, with whom the accused was having a chat in front of the teashop of PW5. It is thereafter that PW1 came there first, followed by the deceased. Both PW2 and PW3 spoke about the incident in all essential particulars, fully corroborating the version of PW1. PW2 and PW3 spoke of the fact that they were having a chat in front of the teashop of PW5, about PW1 reaching there, about the deceased Biju reaching the spot and questioning the accused for having spoken ill of him for demanding the borrowed amount back, about the accused going inside the teashop and coming back with MO1 knife and also about the two stab injuries inflicted by the accused on the deceased, the latter being inflicted below the throat. They also spoke about the motive for the crime. All the Cr.Appeal 1034/2016 14 three witnesses spoke about the availability of light in the teashop. MO2 series dress worn by the accused at the relevant time was also identified. 12. In cross examination, it was elicited from PW2 that MO1 knife was shown to him at the police station on 26.11.2011, i.e. the second day of the incident. This Court is of the view that nothing turns on the said deposition. Going by the prosecution version, MO1 knife was recovered pursuant to a confessional statement made by the accused, wherefore, it is only usual, in the course of investigation, to get the weapon recovered, identified by the witness. Barring the same, nothing material is seen elicited in the cross examination of PW2 and PW3, which would erode the veracity of what they have spoken to in the chief examination. 13. For the sake of completion, we will refer to the evidence tendered by other witnesses as well. PW4 is the person who is residing near Marygiri Junction, in Cr.Appeal 1034/2016 15 whose car, the deceased was taken to Little Flower Hospital after being stabbed. He vouched the said fact before the court. 14. PW5 is the owner of the teashop. He had not seen the incident. But he identified MO1 knife as one used in his teashop to slice vegetables etc. This fact is spoken to by PW5 before the court. He also deposed that both the accused and the deceased used to visit his teashop. PW6 is the witness to the inquest conducted by the Police. He spoke about the same and identified Ext.P2 inquest report and his signature therein. Besides, PW6 also identified MO3 series dress worn by the deceased at the time of inquest. PW7 is a witness to Ext.P3 scene mahazar prepared by the Circle Inspector of Police. He identified Ex.P3 and his signature. PW7 also deposed that three chappals were recovered from the place of occurrence. 15. PW8 is a witness to the recovery of MO1 knife under Section 27 of the Evidence Act. He deposed that Cr.Appeal 1034/2016 16 he saw the accused taking MO1 knife from a small canal on 26.11.2011 situated at the side of the road. He identified Ext.P4 mahazar prepared for that purpose and his signature therein. He also identified MO1 knife recovered. It was elicited in cross examination that there was no water flowing through the canal and MO1 knife was visible to anybody, who passes by. As argued by the learned counsel for the appellant, much credence cannot be attached to the recovery of MO1 knife under Section 27 of the Evidence Act. It was allegedly recovered from an open canal, with no water flowing through it, rendering it visible to anybody who passes by. There is no concealment as such, which renders it difficult to accept the recovery as a relevant piece of evidence. However, the same cannot enure to the benefit of the accused on account of the clear oral evidence adduced by PW1 to PW3, the eye witnesses to the incident. MO1 knife is identified by them as the weapon used for perpetrating the crime. Besides, MO1 knife was identified by PW5, the owner of the tea shop. Cr.Appeal 1034/2016 17 16. PW9 witnessed the recovery of the dress worn by the accused (both shirt and dhoti). He identified Ext.P5 mahazar to that effect. PW10 was the civil police officer attached to Kalady Police Station. He witnessed PW11 scientific assistant, collecting samples from the scene of occurrence. PW10 is the witness to Ext.P7 mahazar prepared for that purpose. PW11 is the scientific assistant attached to D.C.R.G., Rural Police, Ernakulam. She deposed that on 25.11.2011, she examined the scene of occurrence and collected two samples, namely, cotton gauze and control cotton gauze. The same was packed and sealed and entrusted to the investigating officer and Ext.P8 letter issued by her in this regard was identified. It is elicited in the cross examination that she had not taken sample from the blood palm print on the wall at the western side. PW11 would explain that she has not done so, since there was only one injured person. The said failure on the part of PW11 cannot be taken as fatal to the prosecution case. At any Cr.Appeal 1034/2016 18 rate, the same cannot be gainsaid by the accused in exculpation of his guilt, which is otherwise spoken of by the eye-witnesses to the incident. 17. PW12 is Dr.P.J.Thomas, the Casualty Medical Officer of Little Flower Hospital, Angamali. He deposed that he examined the deceased on 24.11.2011 at 7.30 p.m. and found that he was brought dead. He gave Ext.P9 information to the Police which was marked through him. 18. PW13 is the Doctor who conducted the autopsy of the deceased, through whom Ext.P10 postmortem report was marked. PW13 reiterated his findings in Ext.P10 postmortem report. As regards cause of death, PW13 deposed that the deceased died of the incised penetrating injury sustained to chest, thereby refering to injury No.6 in Ext.P10. He also deposed that, as requested by the investigating officer, the blood sample of the deceased was sent for chemical examination and the same was determined as B Cr.Appeal 1034/2016 19 positive. PW13 would depose that injury No.6 is sufficient to cause the death in the ordinary course and that the same can be caused by MO1 knife. In cross examination, PW13 would state that injury No.1 is probable of being inflicted, even with a finger nail. A suggestion that injury no.1 cannot be caused by stabbing was denied by stating that the same is possible, if the stab is prevented by holding the knife. Another suggestion that injury no.1 cannot be caused with MO1 weapon was also denied, by stating that such abrasion can be caused with the tip of MO1 knife, eventhough the probability of an injury by nail is more. It is also elicited that injury no.6 can be caused in a scuffle. 19. PW14 was the Engineer of Manjapra Section of K.S.E.B. He issued Ext.P11 certificate, certifying that on 24.11.2011, between 6.30 p.m. and 7.30 p.m, power supply was there at the area around Marygiri. He identified Ext.P11 and his signature therein. Pw15 was the village officer of Manjapra Village at the Cr.Appeal 1034/2016 20 relevant time and he prepared Ext.P12 site plan, after inspecting the place of occurrence. He identified Ext.P12 and his signature therein. It is elicited in cross examination that the position of electric bulbs are not shown in the plan. PW15 would state that the place of occurrence was in front of the teashop of PW5 and that there is a big wall beneath the place of occurrence. 20. PW16 was the sub inspector of police attached to Kalady Police Station at the relevant time. He recorded the first information statement of PW1 Tibin and identified Ext.P1 F.I.S.. On the basis of Ext.P1, PW16 registered Crime No.1249/2011 in this case for offence under Section 302 of the Indian Penal Code. Ext.P1(a) F.I.R. was marked through him. It is elicited in cross examination that PW1 had not stated anything about the deceased being stabbed in his stomach and that no identifying mark of MO1 knife was stated in Ext.P1 F.I.S.. PW17 is the investigating officer, who spoke about the various steps of Cr.Appeal 1034/2016 21 investigation, as also, about the arrest of the accused on 24.11.2011. He spoke about preparation of Ext.P3 inquest report, seizure of MO3 series dress worn by the deceased vide Ext.P3 mahazar, seizure of MO5 series chappals (3 in number), about collection of samples by the scientific assistant vide Ext.P7 mahazar and Ext.P8 letter issued by the Scientific Assistant, about Ext.P13 series arrest memo, custody memo and inspection memo prepared at the time of the arrest of the accused, about Ext.P5 mahazar recording recovery of MO2 series shirt and lungi worn by the accused at the time of occurrence, about the confessional statement given by the accused and the recovery of MO1 knife pursuant to the same vide Ext.P4 mahazar, and also about Ext.P16 F.S.L report received by him, which was produced before the court. In cross examination, PW17 would state that there was streetlight at the place of occurrence and that the wattage of the bulb in the teashop is not specifically brought out in the investigation. It was also elicited that the blood group of the accused was Cr.Appeal 1034/2016 22 not brought out in evidence and that he had not availed the services of a finger print expert. 21. Upon scanning the evidence, we hardly find any contradiction or omission, worth the name, except some minor discrepancies, incapable of jettisoning the credibility of the evidence tendered by eye-witnesses to the incident. As it is trite, minor inconsistencies not touching the core of the prosecution case, highlighted out of context, cannot lead to rejection of evidence as a whole. [See in this regard Leela Ram (supra)]. We therefore conclude, essentially on the strength of the evidence tendered by PW1 to PW3, three eye-witnesses to the incident, that the guilt of the accused has been satisfactorily established by the prosecution, beyond the pale of any reasonable doubt. Our conclusion is further strengthened by the presence of B+ve blood (blood group of deceased) in MO7 shirt and MO8 lungi worn by the accused at the relevant time, which fact is proved by the evidence tendered by PW13 doctor, who Cr.Appeal 1034/2016 23 spoke of the availability of human blood of B+ve group in the dress of accused. PW9 deposed of witnessing recovery of MO7 shirt and MO8 lungi of accused vide Ext.P5 mahazar and the evidence tendered by PW17, investigating officer, corroborates the above facts. ## - 22. Challenge to Conviction u/s.302: The above finding as regards the overt act of the accused stabbing the deceased takes us to the last limb of argument canvassed by the learned counsel for the appellant, which pertains to sustainability of the conviction under Section 302 of the Indian Penal Code. According to the learned counsel, the incident occurred without any pre-meditation in a sudden fight, in the heat of passion upon a sudden quarrel, wherefore, the accused is entitled to the benefit of Exception 4 to Section 300 of the Penal Code. The offence, at best, can be one under Section 299 of the Code, which is punishable only under Section 304. This argument was seriously disputed by the learned Cr.Appeal 1034/2016 24 Public Prosecutor pointing out that the ingredients of Exception 4 are not satisfied in the given facts. 23. Exception 4 to Section 300 is extracted herein below: “Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 24. In the celebrated treatise of ‘ The Indian Penal Code ’ by Ratanlal and Dhirajlal (33[rd] Edition), the requirements of the fourth Exception, in juxtaposition with Exception 1 to Section 300, is depicted thus: “The fourth Exception of Section 300 Indian Penal Code covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the first Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self- Cr.Appeal 1034/2016 25 control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; Cr.Appeal 1034/2016 26 and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight.” (underlined for emphasis) 25. The term 'fight' as employed in Exception 4 implies mutual fight by two or more persons, in which both parties participate. As held by the Hon'ble Supreme Court in Mohd. Mytheen Shahul Hameed v. State of Kerala (AIR 1980 SC 108) , a one-sided attack cannot constitute a fight and Exception 4 would not be attracted when there was no exchange of physical acts between the deceased, who was unarmed, and the accused. 26. In the instant facts, we fail to notice any 'fight' as between the deceased and the accused; much less any sudden fight in the heat of passion upon a sudden quarrel. The accused got infuriated when the deceased questioned him for having spoken ill of him to others. The accused immediately stepped inside the Cr.Appeal 1034/2016 27 tea shop, took MO1 knife and inflicted a fatal injury below the throat of the deceased. We cannot find any 'fight' as such between the accused and the deceased. The precipitate action on the part of the accused was, more or less, unilateral. We hardly find any mutual provocation and aggravation; nor any occasion to apportion the share of blame. It is important to note that the deceased was unarmed, whereas the accused got himself armed, infuriated by the fact that he was questioned by the deceased. There was no exchange of any physical act by and between the deceased and the accused. We, therefore, find that Exception 4 to Section 300 is not attracted in the given facts. 27 . As regards premeditation also, we are of the view that the conduct of the accused clearly indicates the same. Though the accused did not harbour such a motive nor make any preparation for the fight earlier, the minute he entered the tea shop and took the knife and walked out; on to the road where the deceased was Cr.Appeal 1034/2016 28 standing, there occurs cause to presume pre-meditation. 28. We may also incidentally indicate that Exception 1 is also not attracted, inasmuch as the act of questioning the conduct of the accused by the deceased cannot be regarded as a provocation, much less a grave and sudden provocation. 29. We are of the view that Anand Ramachandra Chougule (supra) will not come to the rescue of the appellant/accused. That was a case where the Hon'ble Supreme Court found that the investigation was faulty, that no explanation was forthcoming as to why a counter crime registered along with the main crime was not investigated at all and that the injuries sustained to the accused were also not investigated. Besides, two accused persons were acquitted in that case. Moreover, that was a case where a conviction under Section 302 by the trial court had been altered to one under Section 304, Part-I by the High Court, Cr.Appeal 1034/2016 29 which was challenged before the Hon'ble Supreme Court. The facts involved in Anand Ramachandra Chougule (supra) and the facts at hand before us are not comparable at all. 30. Similarly, the decision of a Division Bench of this Court in Baby Joseph @ Baby (supra)also does not extend a helping hand to the accused. In that case, the accused was going back to his house after sending his children to School and it was the victim who confronted him in connection with an earlier incident, which happened on the previous night. The Division Bench found that there was scuffle between the victim and the accused and that the accused was taken to the place of occurrence only at the instance of the victim. Besides, it was also found that it was the victim who gave the initial provocation. It was in such setting that the Division Bench found that there was no pre-meditation and that the accused is entitled to the benefit of Exception 4 to Section 300 and found him guilty of the offence under Section Cr.Appeal 1034/2016 30 299. The facts at hand before us are quite distinguishable from the facts involved in Baby Joseph (supra). 31. Before concluding, we find that the offence involved is one under Section 300 of the Penal Code, to be precise, under Clause Thirdly of Section 300. As held in Virsa Singh v. State of Punjab [AIR 1958 SC 465], the intention to inflict the particular injury, that is injury no.6 in Ext.P10 postmortem certificate, is manifest. It was never accidental or unintentional. It was opined by PW13, the Doctor who conducted the postmortem, that injury No.6 is sufficient to cause death in the ordinary course of nature. Here, it is important to note that whether the accused had intention to cause death of the deceased is immaterial. It will be enough, as held in Virsa Singh (supra), that the accused had necessary intention to cause the particular injury, which is established by the prosecution beyond any reasonable doubt. Cr.Appeal 1034/2016 31 We, therefore, confirm the judgment of conviction under Section 302 of the Penal Code. The sentence of imprisonment for life is also consequentially confirmed. This appeal fails and the same is, therefore, dismissed. Sd/K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE jg