Balakrishna Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.T.SANKARAN** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937** **CRL.A.No. 2415 of 2010 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 460/2006 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (AD-HOC) FAST TRACK COURT-I, PATHANAMTHITTA DATED 17-08-2010** **APPELLANT/ACCUSED:** **------------------------------------------------------------** **BALAKRISHNA PILLAI, S/O.DAMODHARAN PILLAI, VATTAVILATHEKKETHIL HOUSE MUNDAPPALLY P.O., PERINGANADU.** **BY ADV. SRI.SUNNY MATHEW** **RESPONDENT/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, ADOOR REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.A.No.2415 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of January, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred against the judgment of conviction and sentence in S.C.No.460/2006 on the file of the Additional Sessions Judge (Adhoc) Fast Track court I, Pathanamthitta. The conviction is under Section 302 of IPC and the appellant was sentenced to undergo rigorous imprisonment for life and to pay a sum of Rs.30,000/- as compensation to the son of the deceased with default rigorous imprisonment for two years. 2. The court charge in brief is that due to prior animosity, the accused on 27/06/2004 at about 1 p.m., on the courtyard of the family house of PW5 assaulted the deceased with a tapping knife and thereby committed murder. 3. Prosecution altogether examined 14 witnesses and marked Exts.P1 to P21. MO1 to MO5 are also marked. On the side of the Crl.Appeal No.2415/2010 2 defence, DW1 was examined and Exts.D1 to D6 marked. 4. The prosecution case in a nutshell is as follows: PW1 is the mother of the deceased. She deposed before the court that on the date of incident, her younger daughter was also present in her house. It is also deposed by her that accused called the deceased and thereafter he went to his house. He used abusive words against the deceased and his wife and also against PW1. He also said “ÈßæKæÏÞæA µÞÃߺîí ÄøÞ¢ ÍâÎßÏíAí Îáµ{ßW ÕçºîAJßÜï.” and it is also the evidence of PW1 that the accused as well as his wife pelted stones and mud against the witness and others. Thereafter, PW1 as well as PW13 came to the southern courtyard of their house and she asked for what purpose he is abusing her. At that time, the deceased came hearing the sound and he asked “®LáÕÞ¿à ÕÞ çµZAáKÄí and at that time the accused by uttering the words “ÈßæK §M¢ µÞÃߺîá ÄøÞæÎ¿Þ ” took a knife from the waist area and inflicted a stab injury on the left nipple area of the deceased. Deceased moved 10 feet backwards and fell upon the lap of PW5 and thereafter he was taken to Crl.Appeal No.2415/2010 3 hospital in an autorickshaw by Muraleedharan, the elder son of the witness. PW2 is a neighbour, who is declared as hostile. PW3 is also declared as hostile and not supported the prosecution case. PW4 is the village officer who prepared the plan of the scene of occurrence and marked the same as Ext.P6. PW5 is the wife of the deceased who is also an eyewitness to the incident. According to her evidence, she deposed that the accused is the husband of the sister of the deceased and she further deposed that “ÍVJÞÕí ÕøáKÄí µIí ¾ÞÈᢠεÈᢠµâ¿ß µá¿á¢Ì ÕàGßçÜÏíAí æºKá. ¾BZ æºKçMÞZ ¥NæÏÏᢠØáÖàÜæÏÏᢠÌÞܵc×íÃÉßU ÄÜïáKÄí µIá. ¥ÄáµIí ÍVJÞÕí ÌÞܵc×íÃÉßUæÏ Ä¿Eá. ¥øÏßW Äßøáµß ÕºîßøáK ¿ÞMßBí µJßæµÞIí ÍVJÞÕßæa §¿Äá ÎáÜÏáæ¿ ÄÞæÝ µáJß. µáJáæµÞIí ÍVJÞÕí øIí ºáÕ¿í ÉáùçµÞGá ÕKá ÕàÃá.” She further deposed that the brother of the deceased took the deceased to the hospital in an autorickshaw. 6. PW6 is a witness to the recovery of the knife. He admitted Crl.Appeal No.2415/2010 4 the signature in the mahazar and marked Ext.P7 prepared for the recovery of MO1 weapon involved in this incident. PW7 is also a recovery witness who has also not supported the prosecution case. PW8 is a witness to the scene mahazar. PW9 and PW10 are witnesses to the inquest and PW11 is the scientific assistant, whereas PW12 is the doctor who conducted the post-mortem. He marked the post-mortem certificate as Ext.P10. He deposed that the injuries noted in Ext.P10 are as follows: _“ Deep incised wound ( stab wound) boat shaped with the ends sharply cut and end margins regular on the left side of front of chest. 2.5 x 1 c.m. in external dimension and situated 4.5 cm. inner to nipple 5.5 cm. outer to midline end 13 cm. below collar bone. The injury was entered the chest cavity cutting between 4[th] and 5[th] rib and cutting the 5[th] rib obliquely. The injury then made cut on the pericardium ( covering of heart). The injury then entered the front wall of right ventricle of heart and then cut the base of aorta and then cutting the right atriyal wall, entered its chamber. The wound was directed slight by upwards and to the right. A total minimum depth of injury is 10 cm. The chamber media tinium and both chest_ Crl.Appeal No.2415/2010 5 _cavities were full of blood. The injury to heart wall and aorta showed boat shape. No other injury.”_ 7. PW12 deposed before the court that the deceased died due to stab wound sustained to the heart and it can be caused by MO1 weapon. He further deposed that the injury necessarily is a fatal injury. PW13 - Sobhanakumari is the youngest daughter of PW1. She deposed before the court that she is also an eyewitness to the incident. She was present therein on the fateful day. Her evidence is that she was talking to her sister, Suseeladevi, who is the wife of the accused and her further evidence is that the accused came and used abusive words against his wife as well as against the mother of the witness. She deposed that he even pushed down the father of the witness and further twisted the hand of the mother. While the wife of the accused went to intervene, he stated that “ÈßæK ²x ®HJßçÈÏᢠÕçºîAJßÜï¿à. ÌÞÜX ÉùEÞW ÉùEÄÞÃí ®Kí ÉùEí ¾B æ{Ïᢠ©ÉdÆÕߺîá.” At that time, the deceased came from the gardenland from where he was working. PW5 as well as the son of the deceased came behind him. Thus, according to the witness, the deceased tried to Crl.Appeal No.2415/2010 6 remove the accused. Thus she deposed that “¥çMÞZ ÌÞÜXÉßU ® {ßÏßWÈßKᢠ¿ÞMßBí µJßæÏ¿áJí ÖßÕX ÉßUæÏ µáJß. §¿Äá æÈFßæa ÍÞ·JÞÃí µáJßÏÄí. µáJí §¿Äá æÈFßÈá æµÞIá. ÖßÕX ÉßU 2 _3 ºáÕ¿á ÉáùçµÞGá È¿Kí ÕàÝÞX çÉÞµáKÄáµIí ÖßÕXÉßUæÏ Õß¼ÏN ÄÞBßM߿ߺîß ÄÞBßAß¿Jß. ÖßÕX ÉßU ÉßKà¿í Ø¢ØÞøߺîßÜï.” She further deposed that the accused went with the knife towards his house. 8. PW14 is the investigating officer who deposed before the court that he was the Circle Inspector from 26/11/2003 to 11/08/2006 at Adoor. The F.I. Statement in this case is marked as Ext.P11 by the witness before the court. He deposed that Crime No.461/2004 for an offence under Section 302 was registered and the concerned FIR is marked as Ext.P12. He further deposed before the court that in the presence of the witnesses, he conducted the inquest and the inquest report is marked as Ext.P9. He also deposed before the court that the dresses worn by the deceased are also taken into custody by him as per the said inquest and the said material objects are marked as MO2 and MO5 before the court. He further deposed that he arrested the accused Crl.Appeal No.2415/2010 7 on 27.06.2004 at 10 p.m. from the private bus stand, Adoor and thereon he prepared the arrest memo, custody memo and inspection memo, which are marked as Exts.P13 to P15 before the court. He further deposed that while he questioned the accused, he made a statement to the effect that “µJß ®æa ÕàGßW ÕºîßGáIí. ®æK æµÞIá çÉÞÏÞW µJß ®¿áJá ÄøÞ¢.” and as led by the accused, he was taken to the house. Accused took a weapon from the bed room and produced before him. He seized the same by preparing a mahazar which is marked as Ext.P7. The relevant portion of the statement incorporated in the mahazar, which led to the recovery is marked as Ext.P7(a). He also identified the said knife before the court which is already marked as MO1. He further deposed before the court that the material objects were forwarded to the court including in a 151(A) form. He deposed before the court that scene mahazar, Ext.P8, was prepared in the presence of PW8. His further evidence is that Scientific Assistant also inspected the place of incident and he collected the blood stained soil as well as sample soil. He also deposed that MO3 is Crl.Appeal No.2415/2010 8 the blood stained soil and MO4 is the sample soil. The property list by which the articles were forwarded to the court is marked as Ext.P18. He further deposed that a analysis report was obtained from F.S.L. The forwarding note is marked as Ext.P19 and the FSL report is marked as Ext.P20. He also deposed before the court that the statement of PW13 is recorded under Section 164 by the Judicial First Class Magistrate Court II, Pathanamthitta. He also marked Exts.P1 to P6, portions of the statement given by the witnesses. 9. DW1 is none other than the wife of the accused. The gist of evidence of DW1 is that her husband is a rubber tapper by profession. On 27/06/2004 at about 12.30 hours, he came back after work. She used to keep water for him for washing hands and legs. As usual, he came and while he was washing his hands and legs, PW5 came and asked him “§KæÜ Èà ®æK ¥ÕøÞÇß ®Kí Õß {ßçºîÞ¿Þ.å§Kí ÈßÈAí ²KᢠÉùÏIÞçÏÞ” and then her husband also retorted and it continued for half an hour. Then the deceased came therein with a stick and beat the accused on his back. Then the accused Crl.Appeal No.2415/2010 9 fell down therein and deceased caught hold on his navel area. Then he took a knife from the half wall and there was a tussle for the tapping knife. Then she heard a cry of deceased Sivanpillai. 10. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that first information statement is actually marked through the investigating officer as the maker of the statement was not alive. Except the fact that it moved the investigation machinery, no reliance can be attached to the said document as it is not proved by the maker of the same. The further submission is that in this case, it is an admitted fact that PW1, PW5 and PW13 are very close relatives of the deceased. PW1 is the mother, whereas PW5 is the wife and PW13 is the younger sister of the deceased. It is the submission that Exts.D1 to D4 will show that PW1 deviated from her earlier version before the Police. When witnesses are very close relatives, they can be termed as interested witnesses and when a witness is deviating from her original version or original stand before the investigating officer, the indication is that she is not reliable. In the case of evidence of an interested witness or a relative, this Court Crl.Appeal No.2415/2010 10 should be very careful in accepting the evidence without scrutiny. It is the submission that apart from the oral evidence of PW1, PW5 and PW13, there is no material which will give assurance to the evidence of the said witnesses. It is the further submission made before us that in this case, deviating from the original version, witnesses are giving another version regarding the incident. As per the evidence of PW1 it can be seen that DW1 and the accused abused PW1, whereas, as per the evidence of PW5 and PW13, it can be seen that the accused came and abused DW1 as well as PW1 and PW13. The difference in the version is very vital and important especially when DW1 was not examined by the prosecution. The said witness is examined by the defence and DW1 got no case that the accused assaulted or abused DW1. But she is putting forward a case of private defence. It has to be given its own weight. 11. It is the case of the defence counsel that the defence witness as well as the prosecution witness should be given equal treatment. Now, when PW1 is deviating from her original version before the Police and is giving another version before the court which is not seen Crl.Appeal No.2415/2010 11 corroborated by PW5 and PW13, it is dangerous to act upon the version of PW1. 12. It is the submission of the defence counsel that here is a case of “private defence”. While the accused was examined under Section 313 of Cr.P.C., he categorically stated that “©ºîÏíAí ¾ÞX ÕKá. èµµÝáµßæAÞIßøáKçMÞZ ®æa ÉßùµßW ÈßKᢠÕßùµáµOßÈí ¥¿ßºîá. ÄßøßEçMÞZ ®æa æÈFJᢠ¥¿ßºîá. ®æa ÈÞÍß ÍÞ·Jí µÏùßM߿ߺîá. ¾ÞX µJß ®¿áJçMÞZ ¥ÏÞ{ᢠµJßAí µÏùßM߿ߺîá. ÈÞÍß ÍÞ·æJ Éß¿ßÕßGçMÞZ ¾ÞX èµÕßGá. ®BæÈÏÞÃí æÈFJí æµÞIÄí ®KùßÏßÜï.åµJß ²øßAÜᢠ® {ßÏßW ÕÏíAÞX ²AJßÜï.å¾ÞX ¥BæÈ µáJßÏßÜï.” It is the submission made by the counsel that the specific case of the prosecution is that a tapping knife was used. It cannot be kept at the waist area because it will injure that area also due to its peculiar shape. If that is so, he took a knife from the loin area and inflicted injury also not believable. It is the further submission that the attending circumstances also will show that there was some incident occurred wherein PW5 is the aggressor. It is the submission before us that while Crl.Appeal No.2415/2010 12 PW1 was cross examined, she admitted before the court that “dÉÄß ç¼ÞÜß µÝßEí ¥ÏÞ{áæ¿åÕàGßçÜAÞÃí çÉÞÏÄí” and on the question she further admitted that “ÖßÕX ÉßUÏáæ¿ ÍÞøc Õß¼Ï ÌÞÜX ÉßUÏáæ¿ ÕàGßçÜAí ÕçKÞ ? §Üï ; ¾B{áæ¿ ÕàGßçÜAÞÃí ÕKÄí.åÕß¼ÏN Ø¢ÍÕJßÈí 1/2 ÎÃßAâV ÎáæO ¥Õßæ¿ ÕKá. Õß¼ÏNÏᢠdÉÄßÏáÎÞÏß ¦Ãí ¦Æc¢ ºàJ Õß{ß Äá¿BáKÄí (Q) ” ¥æÄ . Thus, the admissions of PW1 regarding the incident will belie the claim of PW1, PW5 and PW13 to the effect that she reached behind the deceased to the place of incident and it can be also an indication that there was an altercation going on in between PW5 and the accused. The learned counsel also drawn our attention to the evidence of PW5. As per Ext.D5, the original case of PW5 is that “¥Õßæ¿Aí ³¿ßæºîK ÍVJÞÕíå®KÞ¿Þ §Õßæ¿ ÌÙ{¢ ®Ká ” çºÞÆߺîá æµÞIí ÌÞܵc×íÃMßUæÏ É߿ߺîá ÎÞxß. Now as per the. evidence of PW5, he has not even touched the accused. Similarly, the evidence of PW13 is also a partisan evidence which cannot be acted upon. It is the submission of the defence counsel that in this case there Crl.Appeal No.2415/2010 13 was a private defence especially when the prosecution has not proved the place of incident by cogent and reliable evidence. As per the scene mahazar, it can be seen that it is the courtyard of PW1. But at the very same time, it can be seen that where the blood was actually seen is not marked therein. The demarcating area, which was claimed to be therein by the witnesses i.e. the boundary mark is also not seen marked therein. The difference between the houses is also not actually noted therein. Surely Ext.P6 gives some measurements, but that cannot be a reliable piece of evidence to appreciate the materials. The prosecution has not actually marked the spot of incident and also the boundary marks, if any. Thus, the defence counsel concluded his arguments in saying that even if the accused exceeded in his private defence or failed to prove the same, it can be seen that there was an altercation and on sudden provocation the accused acted, which will take the offence out of murder. 13. The learned Public Prosecutor submitted before us that in this case the defence has got a specific case that the accused acted in private defence. When private defence is highlighted, then the Crl.Appeal No.2415/2010 14 incident or involvement of the accused is almost admitted by the defence. Private defence is a defence which shall be brought out by cogent materials available on the file or by separate evidence. Surely, in this case defence examined DW1. The question is whether they are entitled for private defence is to be evaluated on the materials available in this case. It is the submission of the learned Public Prosecutor that in this case, it can be seen that there was an earlier incident and further it can be seen that the nature of the accused and the mental set up of the accused is seen from the evidence of PW1 and PW13. It is the submission of the learned Public Prosecutor that in this case, the accused categorically declared that “ÈßæKæÏÞæA µÞÃߺîí ÄøÞ¢, ” ÍâÎßÏíAí Îáµ{ßW ÕçºîAJßÜ **ï** . Thus, his intention to murder the deceased is evident from those words. Coupled with the same, it can be seen that in this case a very sharp weapon i.e. rubber tapping knife is used as a weapon of offence. It is a very sharp weapon and the injury which is evident from Ext.P10 also will show, the intention of the accused. It is a penetrating injury which also cut through the heart. Crl.Appeal No.2415/2010 15 14. It is the submission of the learned Public Prosecutor that as per the evidence of PW12, the Doctor who conducted the postmortem, it is categorically stated that the injury is necessarily fatal in nature. If that is so, when the accused who is a rubber tapper by profession uses a tapping knife, the sharpness of which was known to him and inflicted an injury as evident from Ext.P10, the intention to commit murder is evident. It is true that only one injury was inflicted by the accused. But when that injury itself is enough not only in the ordinary course, but necessarily fatal, then the only inference that can be drawn is that he intended to murder the deceased. 15. It is the further submission of the learned Public Prosecutor that in this case it can be further seen that when the defence is highlighting a private defence there should be some circumstances to corroborate the same. There is no injury sustained to the accused. Exts.P14 and P15 will show that there is no injury. Ext.P14 is the custody memo, whereas Ext.P15 is the inspection report. Column No.4 of the custody memo will show that no injury is therein. Similarly, Ext.P15 will also show that there is no injury. There is no challenge Crl.Appeal No.2415/2010 16 regarding the entries therein while PW14 was cross examined by the defence. When there is no injury, by no stretch of imagination can it be said that the accused was under the apprehension of death at any point of time especially when he was equipped with a tapping knife. It is the case of the defence that he was beat with a stick on the back side. But if such a blow was given, naturally there will be some mark left upon the body. No such injury is therein which will belie the evidence of DW1 as well as the statement of the accused under Section 313 of Cr.P.C. It is true that he has got a case that the deceased caught hold on his naval area. It is to be noted that when he got no case that he was having any pain or any such injury, the claim of the accused is also belied by the fact that there was no injury noted on the body of the deceased. It is the further submission made before us that in this case, as per the evidence of PW1 and PW5 as well as PW13, it can be seen that the accused abused them. It is the case of PW13 that the accused assaulted PW1 as well as her father and at that point of time, the deceased intervened. It is the submission that when the accused was assaulting women, then only deceased intervened. A law violator Crl.Appeal No.2415/2010 17 cannot claim private defence and cannot be given the right of private defence. It is the further submission of the Prosecutor that an aggressor cannot claim a private defence. Then the private defence fails. It is the submission that when an intention to cause death can be inferred from the injury and the weapon used and also from the words uttered by him, it is a case which will come squarely under the definition of murder and no interference is warranted. 16. In this case, the deceased sustained fatal injuries as per Ext.P10. PW12 is the Doctor who conducted the postmortem. PW12 deposed before the court that the deceased died due to stab wound sustained to the deceased. The measurement of the injury is given by the Doctor as a depth of minimum 10 c.m. It can be further seen that the injury is to the heart and aorta and he further deposed before the court that it is necessarily fatal in nature. After considering the nature of the injury and the evidence of the Doctor, it can be seen that it is a culpable homicide. The question to be considered is that whether deceased died due to the injury inflicted by the accused and whether it is a case of murder or a lessor offence. Crl.Appeal No.2415/2010 18 17. After considering the submissions of the learned defence counsel and the learned Public Prosecutor, it can be seen that in this case, the witnesses examined by the prosecution are close relatives of the deceased. But it is a settled position that only because the witnesses are related ones, it cannot be presumed that always they are giving partisan evidence. As per the dictum laid down by the Apex Court in **Sheesh Ram v. State of Rajasthan 2014 (3) SCC 689** , it is well settled that the evidence of interested witnesses need not always be suspected. It has to be scrutinised with caution and it can be accepted if it is found reliable. In **Karthik Malhar v. State of Bihar (1996 (1) SCC 614)** , wherein it is held that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “ interested” postulate that the witness must have some interest in having the accused some how or other convicted for some animus or for some other reason. In this case it can be seen that the deceased is none other than the son of PW1, husband of PW5 and brother of PW13. But at the same time it is to be remembered that the accused is Crl.Appeal No.2415/2010 19 none other than the husband of the daughter of PW1. PW1, while giving evidence admitted that she attended the marriage of the daughter of the accused. Thus, it cannot be held that PW1 is entertaining a perpetual animosity towards the accused. 18. The incident occurred near to the house of PW1 as well as the house of PW5. Then they can be only treated as natural witnesses. Surely, PW13 is not residing therein. But at the very same time, it is to be noted that as per the inquest report, which is marked as Ext.P9, in column NO.4 it is stated that Sobhana Kumari is a person who had last seen the deceased alive. The relevancy of this entry is that the inquest report is prepared on the very same day. Thus, the entry will be giving some assurance to believe the fact that PW13 was also present at the place and time of incident. 19. When the specific case of the defence is that of private defence, the only aspect to be considered is whether the evidence now tendered by these witnesses before the court is fully reliable or not. It is an admitted fact that the deceased sustained a stab injury from the place as alleged by the prosecution. As per the evidence of PW1, she Crl.Appeal No.2415/2010 20 deposed before the court that “ÖßÕXÉßUæÏåÕß{ߺîßGí ÌÞÜXÉßUå¥ÏÞ{áæ¿ ÕàGßW ÕKá. ÌÞÜXÉßU ®æKÏᢠÖßÕXÉßUÏáæ¿ ÍÞøcæÏÏᢠºàJ Õß{ßߺîá” and her further evidence is that the accused as well as his wife pelted mud and stones. But the very same time it can be seen that during cross examination, it is brought out that the original version of this witness before the Police was that ¥çK ÆßÕآ婺îÏíAí ²øá ÎÃßçÏÞ¿í µâ¿ß ¾ÞX Õà¿ßȵJí ÈßWAáçOÞZ ØáÖàÜÏáæ¿ ÍVJÞÕí ÌÞܵc×íÃÉßU çùÞÁßW ÈßKí ºàJ Õß{ßAáKÄí çµGá and further “ÌÞܵc×íÃMßU ØáÖàÜæÏ ¥¿ßAáµÏᢠ¾Bæ{ µÜïᢠÎHᢠÕÞøß ®ùßÏáµÏ⢠æºÏñá.” . It is an indication that the version now projected before the court by the witness is different from her original case before the Police. Apart from the same, she further deposed before the court that “dÉÄß ØbÏøfÞVj¢ µJß ®¿áJí ÕàÖáµÏÞÏßøáçKÞ (Q)¥Üï; µJß ¥¿áMߺîí æµÞIá ÕKá çÈæø µáJáµÏÞÏßøáKá.” 20. This was the stand of PW1 before the court. But at the very same time during cross examination, she deposed before the court Crl.Appeal No.2415/2010 21 that Ä¿T¢ ÉùEçMÞZ ØáÖàÜæÏ dÉÄß ¥¿ßçºîÞ (“ Q)奿ߺîá ®Kí çÄÞKáKá.å¾ÞX ÉùEßÜï.” Thus, it is an indication that there was an altercation going in between PW1 as well as involving Susheela and the accused. But at the very same time, as per the evidence of DW1, the incident occurred while accused came to the house of the accused and while he was washing. The relevancy of the evidence of PW1 in this regard is that to the Police, the version of PW1 was that he started to abuse from the road. But it was not admitted by PW1 while giving evidence. Now where the incident actually started is not clear from the evidence of PW1. 21. Now, when the evidence of PW5 is analysed, as per the evidence of PW5 her case is that “®æa ¥NÞÏߥNæÏÏᢠØáÖàÜæÏÏᢠçÖÞÍȵáÎÞøßæÏÏᢠdÉÄß ¥¿ßAáK ØÎÏJÞÃí ¾BZ æºKÄí.å®Kᢠ®LáÕÞ §Õßæ¿ §dÄÏᢠÌÙ{¢ ®Kí çºÞÆߺîÞÃí ÖßÕXÉßU ÌÞܵc×íÃMßUæÏ É߿ߺîáÎÞxßÏÄí.” But when PW1 was cross examined, it can be seen that she admitted that Vijayamma came about ½ hour prior to the incident. If that is so, the Crl.Appeal No.2415/2010 22 version of PW5 to the effect that she came only behind the deceased cannot be fully believed. Similarly, the evidence of PW13 is also to the effect that “¥N §ùBßÕKí ®ÄßVJí Ø¢ØÞøߺîçMÞZ ¥ºí»X ¥NæÏ ÕÝAí ÉùEá. ÌÞܵc×íÃX §æÄÞKᢠյÕÏíAÞæÄ ¥ºí»æÈ ÄUßÏßGí ©ÉdÆÕߺîá.” But neither PW1 nor PW5 got such a case that accused assaulted or pushed down the father of the deceased. It is also brought out while PW13 is examined that as per the version of the said witness before the Magistrate the accused straight away came from the house of the accused and after taking the knife from the waist area, he inflicted a stab injury on the chest area. This is marked as Ext.D6. When there is no explicitly reliable evidence regarding the actual incident, but at the very same time, the fact that the accused inflicted fatal injury to the deceased is seen proved. There is evidence to show that immediately before the incident there was exchange of words or there was some quarrel gong on in between the witnesses and the accused and in the said quarrel, the deceased came and intervened and then the incident occurred. Surely, in this case, the version of Crl.Appeal No.2415/2010 23 DW1 regarding the incident is not inspiring confidence. So also the version of the accused under Section 313 of Cr.P.C. But the facts seen proved is that there was a quarrel going on, during the same accused inflicted the injury. Appreciating the evidence of the Doctor, who is examined as PW12 and also the area where injury is sustained and further the nature of the weapon and injury, it can be safely concluded that the culpable homicide committed by the accused will amount to murder, subject to availability of exceptions enumerated in Section 300 of IPC. 22. It is not proved that there was an apprehension of death or sustaining grievous injury to the accused. There is nothing to show that deceased was equipped with a weapon. The fact proved is that when a quarrel was going on the deceased came therein and intervened and thereon the fatal injury was inflicted by accused, that also by a weapon which was usually used by a rubber tapper. The accused is a rubber tapper by profession. There is further evidence that he usually used to come at 1'o clock after his work. The incident occurred at that time. There is also evidence of DW1 before the court that immediately Crl.Appeal No.2415/2010 24 on arrival of the accused after work, the incident occurred. On the back ground of these evidences, we feel that here is a case where the accused will be entitled for Exception 4 of Section 300 of IPC. Thus, what follows is that the conviction under Section 302 of IPC will not lie. It can be only said that the accused committed an offence punishable under Section 304 Part I of IPC. The conviction and sentence passed by the court below under Section 302 of IPC is hereby set aside and the appellant is convicted for an offence punishable under Section 304 Part I of IPC and he is sentenced to undergo rigorous imprisonment for nine years and also to pay a fine of Rs.25,000/- with default simple imprisonment for six months. If the fine is realised, it shall be given to the child of the deceased Sivanpillai. As stated above, the appeal is partly allowed. ## **K.T.SANKARAN, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.