Benny, S/o Joseph v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P. BHAVADASAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938 CRL.A.No. 265 of 2012 ---------------------AGAINST THE JUDGMENT IN SC 468/2010 of II ADDL.DISTRICT AND SESSIONS COURT,ERNAKULAM. APPELLANT(S)/ACCUSED: --------------------- BENNY, S/O. JOSEPH, C. N. 9638, CENTRAL PRISON,VIYYUR. BY ADV. SURIN GEORGE IPE (STATE BRIEF) RESPONDENT(S): ------------ STATE OF KERALA. BY PUBLIC PROSECUTOR SRI. KK. RAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P. BHAVADASAN & RAJA VIJAYARAGHAVAN V, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 265 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of March, 2016. ## **JUDGMENT** ## **P. Bhavadasan, J.** The family of the deceased and PW1, who is his younger brother, were celebrating the first marriage anniversary of PW1 on 27.10.2009. The accused is none other than the brother-in-law of the deceased. On 27.10.2009 as the celebrations were going on in the house, in which the deceased and accused were participants, when the accused was about to leave the house after the celebrations, it so happened that he picked up quarrel with PW1 regarding the property which belonged to the family. Hearing the commotion, the deceased came out of his room and asked both of them to leave the place. This was not to the liking of the accused, who threatened the deceased with dire consequences. It was also the allegation that during the day time on the Crl.A. 265/2012. 2 same day, when the children of the accused came to the house of the deceased, wife of the deceased ill-treated them. Benny, the accused, left the house after participating in the marriage anniversary celebration, and PW1 and the deceased went to sleep. At about 11.30 p.m. PW1 heard the cries of his sister-in-law and when he opened the door, he found the deceased holding on to his stomach and when he saw PW1, he stated that the accused had stabbed him. PW1 at once tied the wound with a towel. It was made known to him that when the accused came and knocked the door, PW3 opened the door and asked the accused to return to his house and come on the next day. But the accused forced open the door and entered the room where the deceased was sleeping and stabbed him. PW1, seeing that the deceased was injured, went to his neighbour and with the help of other neighbours removed the deceased in an autorickshaw to the Government Hospital at Ernakulam. On examination by the doctor, he was pronounced dead. Crl.A. 265/2012. 3 PW1, in the early hours of 28.10.2009, laid Ext.P1 First Information Statement before Njarakkal Police Station. PW13 recorded the same and registered crime as per Ext.P1(a) FIR. Investigation was taken over by PW14. He went to General Hospital mortuary and conducted inquest over the body of the deceased. Ext.P6 is the inquest report. PW14 had seized the clothes found on the body of the deceased at the time of conducting inquest. He then had the body sent for autopsy. PW11, the Forensic Surgeon conducted autopsy and furnished Ext.P14 report. In the meanwhile, PW14 proceeded to the place of incident and prepared Ext.P4 scene mahazar. He had the assistance of PW12, the Scientific Assistant who collected certain materials from the place of incident which was handed over to PW13 by PW14 as per Ext.P8 mahazar. PW14 then had all the articles collected during investigation sent for chemical examination as per Ext.P15. On 28.10.2009 at about 2.30 p.m. he had the accused arrested from Njarakkal. Based on his confession Crl.A. 265/2012. 4 statement marked as Ext.P5(a), the weapon of offence was recovered and that is M.O.VII. He also seized the clothes which were said to have been worn by the accused at the relevant time as per Ext.P7 mahazar. He recorded the statements of witnesses, obtained Ext.P20 chemical analysis report, completed investigation and laid charge before court. 2. The court, before which the final report was laid, took cognizance of the offences and finding that the offences are exclusively triable by a court of sessions, committed the case to Sessions Court, Ernakulam under Section 209 Cr.P.C. after following the necessary procedures. The said court made over the case to II Additional District and Sessions Court, Ernakulam for trial and disposal. The latter court, on receipt of records and on appearance of accused, framed charge for the offences punishable under Sections 449 and 302 of I.P.C. On reading out the charge, the accused pleaded not guilty and claimed to be tried. Crl.A. 265/2012. 5 3. That caused the prosecution to examine PWs 1 to 14 and marked Exts. P1 to P21. M.Os. I to VII were got identified and marked. The defence from his side had Ext.D1 marked which is a portion of the 161 statement of one of the witnesses examined by the prosecution. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. regarding the incriminating circumstances brought out in evidence through the witnesses. The accused denied all the incriminating circumstances and maintained that he is innocent. Having found that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 4. The court below considerably influenced and impressed by the evidence of PWs 1 to 4 and recovery of M.O.VII based on the confession statement said to have been furnished by the accused, came to the conclusion that the prosecution has clearly established the allegations against the accused. He was therefore found Crl.A. 265/2012. 6 guilty of both the offences alleged against him. He was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.2,00,000/with a default clause of rigorous imprisonment for one year for the offence under Section 302 I.P.C. and also to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/- with a default sentence of rigorous imprisonment for one month for the offence under Section 449 of I.P.C. Substantive sentences were directed to run concurrently and if the fine amount was realized, the amount was directed to be paid to the wife and children of the deceased under Section 357(1) of Cr.P.C. It is also stipulated that if the appropriate authority exercises powers under Section 432 or 433 Cr.P.C. as the case may be, the accused would be entitled to the benefit of set off. 5. The appeal having been preferred from jail, Adv. Surin George Ipe was appointed as State Brief. 6. In his well prepared and well presented argument, learned counsel assails the finding of the trial Crl.A. 265/2012. 7 court on several grounds. Even though learned counsel could not effectively challenge the finding of the court below that the incident had taken place, the focus was on the question even if all the allegations of the prosecution are taken as proved, the offence made out falls only under Section 304 of I.P.C. 7. Learned counsel drew the attention of this Court to the effect that during the marriage anniversary celebration, the quarrel was between PW1 and the accused and therefore, there was no reason why he should turn his wrath on the deceased. It is also pointed out that the celebrations included taking of drinks also. Probably, according to the learned counsel, under the influence of the same, the accused might have acted. The further contention was that even assuming that all what the prosecution says is proved, there is only a single stab injury, which could not be termed as fatal and that would show that there was no actual intention on the part of the accused to cause the death of the deceased. He Crl.A. 265/2012. 8 might have acted on the heat of passion or rush of blood and by no stretch of imagination the injury resulted in the death of the person concerned could be said to be one inflicted with the intention or with the knowledge that the injury inflicted is sufficient in the ordinary course of nature to cause the death of the person concerned. These aspects have been lost sight of by the court below and according to the learned counsel, that has resulted in miscarriage of justice. 8. Learned Public Prosecutor on the other hand very vehemently opposed the above contentions and pointed out that the sequence of events speak for themselves. The prosecution allegations, according to the learned Public Prosecutor are that when there was a quarrel between PW1 and the accused during the marriage anniversary celebration, the deceased had intervened and separated them and asked the accused to go home. The accused also had a grievance that his children were ill-treated by the wife of the deceased. Crl.A. 265/2012. 9 Learned Public Prosecutor pointed out that the incident took place long after that issue was over and the accused had gone home. He later returned armed and knocked at the door of the house of the deceased. When PW3 opened the door and found the accused outside, the deceased is said to have asked him to go home and come on the next day if at all he had anything to say. Ignoring the said plea made by the deceased, the accused forced open the door and went to the room where the deceased was sleeping and stabbed him. It could not, therefore, be said according to the learned Public Prosecutor, that the act was done in a heat of passion or on a sudden provocation since the time lag between the incident during the marriage anniversary celebration and the act in question were not at all proximate. Learned Public Prosecutor in order to controvert the decisions relied on by the learned counsel for the appellant, namely, **Mohanan v. State of Kerala** (2010 KHC 233), **Beant Singh alias Dara Singh v. State of Punjab** (2013 KHC Crl.A. 265/2012. 10 2691) and **State of Rajasthan v. Satyanarayan** (AIR 1998 SC 2060), relied on the decision reported in **Ankush Shivaji Gaikwad v. State of Maharashtra** (AIR 2013 SC 2454) and contended that if the test as laid down in the above decisions is concerned, there can be no manner of doubt that the offence squarely fall within the ambit of Section 300 of I.P.C. punishable under Section 302 I.P.C. 9. Fortunately or unfortunately, there is not much dispute regarding the cause of death of the deceased. That the husband of PW3, namely, James, died as a result of the injury suffered by him at the hands of the accused is established through the evidence of PWs 1 to 4. Their evidence will be subjected to greater scrutiny at a later point of time. The evidence in this case is to the effect that even though the injured was removed to the hospital, on arrival in the hospital, on examination by the doctor, he was found dead. PW14 prepared the inquest report, namely, Ext.P6. That shows the injuries found on the body of the deceased. More light is thrown Crl.A. 265/2012. 11 in this regard by the evidence of PW11 who is the Forensic Surgeon who had occasion to conduct the autopsy over the body of the deceased. He furnished Ext.P14 report. It may be worthwhile to refer to his evidence in this connection. After having deposed about the nature of injuries which he makes mention of in his report, he states that the injury which caused the death of the person concerned could have been inflicted with the weapon recovered. 10. His opinion as to the cause of death runs as follows: “The deceased died due to massive hemorrhage due to stab wound to lower part of left side of chest which had penetrated in to the abdominal cavity and had perforated the stomach and also injured the lesser omentum and right adrenal arteries.” The report shows that there were two incised penetrating wounds, of which first injury is the fatal one. He has in no less terms asserted that injury No.1 noted in Ext.P14 is sufficient to cause death as there was profuse internal Crl.A. 265/2012. 12 bleeding. We have noted that he has also opined that injury No.1 is sufficient in the ordinary course of nature to cause death of the person concerned. 11. The above items of evidence are sufficient to warrant a conclusion that death of James was caused by the inflicted injury and it is a clear case of homicide. 12. The next question that arises for consideration is whether the prosecution has established that it was the accused who had inflicted the fatal injury. Again, it was the inflicted injury in the light of the evidence furnished by PWs 1 to 4. Their evidence has been discussed in detail by the court below, but being an appellate court, it is appropriate that we reconsider the evidence of these witnesses. 13. PW1 is the author of Ext.P1 FIS. He speaks about the facts which has already been narrated. He says that on the date of the incident it was his marriage anniversary day and there was a small celebration in the house and all the relations have gathered there including Crl.A. 265/2012. 13 the accused. He says about the various acts done during the celebration. He also points out that the relationship between the deceased and the accused was not so cordial. That possibly was the reason why the deceased did not join in the ceremony, according to PW1. He would also depose that wife of the deceased did not like the children of the accused coming home. 14. His evidence reveals that they had obtained pattayam in respect of a property and in order to obtain pattayam, the mother, in whose name the pattayam was obtained, had taken the aid of Benny. This was not to the liking of PW1 and he questioned the act of the mother in doing so. That resulted in a wordy altercation between PW1 and the accused. Deceased along with his family was residing with the mother. PW1 would say that Benny pointed out that the deceased had a separate house of his own and it is only proper that he takes up residence in that house and the accused made it clear that he did not like the deceased residing with the mother. Crl.A. 265/2012. 14 15. PW1 also says that there was a wordy altercation between him and the accused. At that point of time, the deceased intervened and asked Benny to leave the house. PW1 says that annoyed, the accused threatened the deceased and left the house. The evidence of PW1 is to the effect that after the celebration, the accused had left the house and others went to sleep. At about 11.30 p.m., he woke up hearing the cries of his sister and he came out to the sit out of the house. When he reached the sit out, he found the deceased holding on to the injury suffered by him and standing near a coconut tree. The deceased is said to have told him that the accused had stabbed him. PW1 would say that he tried to tie the wound with the towel that was available at the spot. He was not successful in doing so and therefore, he tied the wound with a lunki. The deceased was bleeding profusely. He would also say that when he reached the place hearing the cries of the deceased, he happened to see the accused running away from the place. He then Crl.A. 265/2012. 15 speaks about having removed the deceased to the hospital and the subsequent event of deceased passing away. 16. PW2 is none other than the wife of PW1. Her version of the incident is almost similar to the one furnished by PW1 and it is unnecessary to repeat the same. 17. PW3 is the unfortunate wife of the deceased. Her evidence shows that while the marriage anniversary celebrations were going on, in relation to the pattayam obtained in respect of the property of the mother of the deceased, there occurred a wordy altercation between the accused and PW1. She also stated that the residence of herself and her husband in the house of the mother of the deceased was not to the liking of the accused. She has also fairly conceded that she did not like the children of the accused coming to the house and she used to scold them. Due to the rift in the relationship between Benny, the accused, and the Crl.A. 265/2012. 16 deceased, the deceased had not effectively participated in the marriage anniversary celebration. 18. She would say that while there was a wordy altercation between the accused and PW1 regarding the pattayam of the property, her husband intervened and that was not to the liking of the accused who threatened him with dire consequences. After ensuring that Benny had left the house, the deceased went to sleep. At about 11.30 p.m. she heard a knock at the door and command to open the door. She switched on the light and opened the door to find the accused standing there. Anticipating the presence of the accused, the deceased is stated to have said that if it was Benny who had knocked the door, he needs to come only on the next day morning if he had anything to say. However, PW3 would say that when she was about to close the door, the accused forced open the door and holding a knife behind him he entered the room where the deceased was sleeping. When the deceased noticed the Crl.A. 265/2012. 17 knife held by the accused, he tried to escape. He was unsuccessful in doing so and suffered stab injuries at the hands of the accused. Seeing that her husband had suffered an injury, she let out a cry which brought others at the place of incident. She then narrates the facts as narrated by PW1 and since it is only be a repetition, it is not necessary to mention those facts. 19. PW4 is a neighbour of the deceased. She is a tailor by profession. On the date of the incident she claims that she was engaged in stitching of clothes and at about 11.30 p.m. she heard a cry of PW3. She would point out that the room occupied by PW3 and her husband was close to the sit out of the house. When she came out and looked at the place from where the cry had come, she found the accused standing at the culvert near to their house. She claims to have heard the utterance of the accused to the effect “ÈÜïÕH¢ Éß¿Ï¿Þ ÈßÈAáUÄÞÏßGáIí”. She also happened to see the accused holding a knife. Crl.A. 265/2012. 18 20. Even assuming that the evidence of PW4 may not be quite convincing enough, the evidence of PW1 to PW3 seems to be formidable. Inspite of searching cross-examination, nothing could be brought out from their evidence to show that they were speaking falsehood. It is significant to notice that no serious inconsistencies or contradictions could be brought out in their evidence which was incompatible with their earlier statement either to the police or in Ext.P1. PW1 gave a consistent and uniform version of the incident. There is no divergence in the statement of witnesses. Of course, the person who had actually seen the incident is only PW3. The evidence of PWs 1 and 2 also indicate that the incident took place as alleged by the prosecution. It is significant here to notice that when PW1 rushed to the aid of the deceased, the deceased is said to have told that Benny had stabbed him. This amounts to statement under Section 32 of the Indian Evidence Act. Whatever that be, there is nothing in the evidence of PWs 1 to 3 to Crl.A. 265/2012. 19 show that they had any ill-motive or any oblique reasons to falsely implicate the accused. The lower court was fully justified in coming to the conclusion that the injury which resulted in the death of the deceased was inflicted by the accused. We find no grounds to interfere with the said finding. If further corroboration is required, that is furnished by the recovery of the weapon based on the confession statement furnished by the accused. 21. Faced with the above situation, learned counsel for the appellant then tried to bring the act of the accused within the ambit of Section 304 of I.P.C. by pointing out that there was no pre-meditation or intention to cause any particular injury or to cause the death of the person concerned. He recalled the sequence of events on the date of incident and pointed out that probably in an inebriated condition, without much thought the accused might have acted in a fit of rage or heat of passion without intending to cause the death and that benefit should certainly be given to the accused. In the decision Crl.A. 265/2012. 20 ## reported in **State of Rajasthan v. Satyanarayan** (1998 KHC 1263) it was held as follows: “In our opinion, the prosecution had established beyond doubt that the respondent had given a knife blow to Kesar Lal and that he died as a result of the injuries caused by that blow. Though the injury was sufficient in the ordinary course of nature to cause death, the evidence discloses that the respondent had not aimed the blow on any vital part of Ram Gopal or Kesar Lal. The blow was aimed at Ram Gopal but as he moved aside, it landed on the stomach of Kesal Lal. The dispute was not such which would have prompted the accused to cause the death of Kesar Lal, particularly when he had no dispute with Kesar Lal. The dispute was with Bhima, the brother of Kesar Lal. This aspect was not at all considered by the trial court or by the High Court. In our opinion, in view of the facts and circumstances of the case, the appellant should have been convicted under S. 304, Part I, IPC and not under S. 302.” 22. Considerable reliance was placed on the decision reported in **Beant Singh alias Dara Singh v. State of Punjab** (2013 KHC 2691), wherein it was held as follows: Crl.A. 265/2012. 21 “27. In Court on its own motion V. State of Punjab and others 2005 (4) RCR (Criminal) 673, this Court expressed the view that in the cases arising out of utter callousness are a matter of deep concern and the prosecution for an offence under S. 304 - A IPC may not be in order, and in the circumstances may warrant more rigorous action. A direction was, therefore issued to the courts subordinate to this Court to ensure that in cases of extreme negligence and rashness and only where the circumstances so warrant, a charge under S.304 of 302 IPC adequate to the circumstances of the case be framed along with the alternative charge under S. 304 - A IPC. The observations in Gurdev Singh Sardar Puran Singh V. Emperor AIR 1941 Lahore 459 were also referred, which are as under: “..................... It is possible that the driving of a heavy vehicle at high speed in a crowded place like a city might result in charge under S. 304, or even under S.301, Penal Code, but it would be impossible under the circumstances of this case to bring the offence under either of these sections. xxxx xxxx xxxx” 28. In Bimbadhar Parida and Others v. State of Orissa 1993 Supp (4) Supreme Court Crl.A. 265/2012. 22 Cases 34, a mob of villagers consisting about 300/400 persons came to Mali Sahi from all the sides carrying deadly weapons shouting that they would assault the “Malis” and set fire to their houses. Bombs were exploded. Doors of houses were broken. The houses were damaged and ransacked and the “Malis” were assaulted and their properties were taken away. The major incident during this occurrence was in respect of throwing of a bomb by Bimbadhar Parida on the Kandhi Dei which resulted in her death. The story of the prosecution was that on seeing the mob approaching house, the husband of the deceased went inside the house and bolted the door. Some of the assailants uprooted the door and entered the house. When the deceased tried to stop them by standing at the front door and when she refused to give way to Bimbadhar Parida, he threw a bomb towards her which exploded on her stomach of which she died. The contention in that case was that the conviction of appellant under S. 304 Part II IPC was not warranted. Hon'ble Supreme Court found no force in this submission. There was positive evidence that the appellant hurled the bomb which resulted in the death of the unfortunate lady. Such an act was held to be very serious one and warrant no interference even Crl.A. 265/2012. 23 in respect of the sentence which was not at all excessive. The sentence awarded by the High Court in that case was four years rigorous imprisonment, which was upheld by Hon'ble Supreme Court. 29. From the facts of this case also the offence under S.304 Part II IPC would be attracted and not S. 302 IPC in the absence of the proof of the motive with the accused in intentionally running over those persons, sitting in the Pandal with a motive to teach the family of Jagdish Chand, complainant a lesson for causing differences between the appellant and his wife. It is not a case where the appellant intended to kill a particular person present there but his act has been proved to be such which amounts to culpable homicide not amounting to murder.” ## 23. In the decision reported in **Mohanan v.** ## **State of Kerala** (2010 KHC 233), it was held as follows: “42. In the instant case, the appellant inflicted a stab injury on PW1. Seeing that PW1 was being hurt, Beena came to rescue. In the heat of passion, Beena was also stabbed. It fell at the buttock. Beena ran. The appellant followed her and kicked her. As a result, she fell down. Though the appellant could stab her again, he didn't. The Crl.A. 265/2012. 24 stab cut iliac artery, caused bleeding which resulted in the death. Injury was neither intended nor inflicted targeting a vital part. But, it struck at the buttock. The injury was sufficient to cause death in the ordinary course of nature and the victim succumbed to the injuries. Our considered view is that there was no intention to cause death, but the intention was only to inflict injuries to Beena. Therefore, no offence under S.302 IPC was established, but only an offence under S.304 IPC, Part II was established. Conviction under S. 302 IPC is liable to be altered to S. 304 IPC, Part II.” 24. Learned counsel for the appellant relying on the principles laid down in the above decisions contended that the principles laid down in those decisions apply to the facts of the present case and the court below was not justified in coming to the conclusion that offence under Section 302 IPC has been made out. 25. However, the learned Public Prosecutor placed considerable reliance on the decisions reported in **Ankush Shivaji Gaikwad v. State of Maharashtra** (AIR 2013 SC 2454) and pointed out that if the principles laid down in the said decisions are applied to the facts of Crl.A. 265/2012. 25 this case and also the test made mention of therein to ascertain whether the act falls within the ambit of Section 302 or Section 304 of I.P.C., there can be no manner of doubt that the act falls within Section 300 I.P.C. punishable under Section 302 of I.P.C. The main contention raised by the learned counsel for the appellant is that there was no intention to cause the death of the deceased. In the absence of any method to ascertain the intention, one has to certainly look into the state of mind of the person concerned, especially the conduct of the person before, during and after the incident. 26. If one goes through the evidence carefully, it can be seen that the accused had left the house of the deceased annoyed by the conduct of the deceased. True, the altercation regarding the property was between PW1 and the accused. But the intervention of the deceased was not to the liking of the accused. He had another reason for the same. The wife of the deceased, namely, PW3 was not very much in favour of the children of the Crl.A. 265/2012. 26 accused coming to their house. One may remember here that at the time of leaving the house at the behest of the deceased, the accused had threatened him with dire consequences. After leaving the house, he comes back after considerable lapse of time and knocked at the door of the deceased. Even though the deceased asked him to come the next day and when PW3 tries to close the door, the accused forced open the door and went to the room where the deceased was sleeping. Inspite of the attempt to ward off the attack, the deceased sustained stab injury on the stomach of the deceased. 27. We fail to see any heat of passion or reason for spontaneous action of the accused in this case. There is no way to link the act committed by the accused to the earlier incident due to the long time lag in between the two incidents. 28. Of course, we are not forgetting the fact that PW11, the doctor, has stated that the injury suffered by the deceased need not result in instantaneous death. Crl.A. 265/2012. 27 However, on a reading of the evidence of PW11 as a whole, one is in no doubt that the injury inflicted by the accused is a fatal one and is sufficient in the ordinary course of nature to cause the death of the person concerned. 29. It is here, one has to notice the decision reported in **Ankush Shivaji Gaikwad v. State of Maharashtra** (AIR 2013 SC 2454) on which heavy reliance is placed on by the learned Public Prosecutor. Certain tests have been laid down in that decision which contained in paragraph 23 of the decision and if those tests are applied to the facts of this case, then we see that - (i) the accused forced himself into the house of the deceased, - (ii) he came armed with a dangerous weapon, - (iii) he inflicted a stab injury on the vital part of the body, - (iv) there is no immediate reason to do so, - (v) there is considerable lapse of time between the Crl.A. 265/2012. 28 two incidents. If that be so, going by the test, the alleged act would fall within the ambit of Section 300 punishable under Section 302 I.P.C. 30. Obviously, the court below was also justified in coming to the conclusion that offence under Section 449 is also made out in the facts and circumstances of the case. We find no reason to interfere with the said finding. The result is that this appeal is without merits and it is only to be dismissed. We do so. ## P. BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE sb.