Biju @ Chikan Thoma 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 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937 CRL.A.No.1475 of 2011 --------------------------AGAINST THE JUDGMENT IN SC 299/2005 of 3[rd] ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA DATED 24.02.2010 APPELLANT/1ST ACCUSED: ------------------------------ BIJU @ CHIKKAN THOMA, S/O. PAULOSE, CHELAKUZHI VEEDU, NEAR TRIBAL SCHOOL, IRUMPUPALAM BHAGUM, VALARA KARA, MANNAMKANDOM VILLAGE. BY ADV. SRI.UNNIKRISHNAN.V.ALAPPAT ## RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, ADIMALY. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. - BY SMT.S.HYMA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.BHAVADASAN & RAJA VIJAYARAGHAVAN V, JJ. ------------------------------------------Crl. Appeal No.1475 OF 2011 ------------------------------------------Dated this the 4[th] day of February, 2016.** ## **J U D G M E N T** ## **P.Bhavadasan, J.** In an incident which took place on 18.10.2002, a person by name Sanal lost his life. Two persons were involved in the incident. It is understood that one of them namely, second accused died even before the case was committed and the charge against him stood abated. In fact, only the first accused stood trial. 2. The prosecution story runs thus: PW1 and the deceased Sanal, on 17.10.2002, had gone to Basellious Hospital at Kothamangalam to visit the father of a friend of Sanal. Sanal, the deceased, remained in the hospital while PW1, who is the author of Ext.P1 First Information Statement, went to the Tharavad **Crl. Appeal No.1475/2011** **2** house of his brother's wife. In the evening at 5.30 p.m on 18.10.2002, they returned to their home in the motorbike driven by PW1. Since it was raining, when they reached Adimaly at about 8.30 p.m, they were forced to enter into a bar. They saw three persons sitting around the table in the bar consuming liquor. PW1 and the deceased sat in the chairs placed in front of the table where the said three persons were seated. A short while thereafter, one among the three who were sitting in the other table left the place. The prosecution story is that a short while thereafter, the other two persons came near PW1 and the deceased and they consumed liquor together. By about 9.30 p.m, the employees of the bar informed them that it was time to close the bar and they should leave. While PW1 and the deceased were prepared to leave the bar, that was not the mood of other two persons. It is stated that PW1 and the deceased were able to persuade the other two persons to leave the bar for which the employees of the bar thanked them. After **Crl. Appeal No.1475/2011 3** getting out of the bar, PW1 and the deceased were preparing to mount their motorbike and leave the place and at that time, the second accused caught hold of the collar of the deceased and restrained him and then without any provocation, the first accused is alleged to have drawn a knife from his loin and inflicted an injury on the chest of the deceased. The injured, deceased, fell on the ground. 3. PW5 was then working as Additional Sub Inspector of Police at Adimaly. He got information about two persons lying bleeding before the Dhanya bar which took him to the place in an autorickshaw along with two other Police Constables. When PW5 reached the place, one of the persons lying on the ground got up while the other remained on the ground. The persons who were injured were removed to the Morning Star Hospital, Adimaly. But, on reaching the hospital, one among the injured was pronounced dead. PW5 would say that he returned to the Police Station and informed the Sub **Crl. Appeal No.1475/2011** **4** Inspector of Police. In the meanwhile, PW1 who had also suffered an injury, went to the Police Station and laid Ext.P1 First Information Statement. 4. PW21 recorded Ext.P1 First Information Statement furnished by PW1 and he registered a crime as per Ext.P1(a) First Information Report. 5. Investigation was taken over by PW22 who was the then Circle Inspector of Police, Adimaly. He went to the Morning Star Hospital and conducted inquest over the body of deceased and prepared Ext.P2 inquest report. He also recovered the clothes found on the body of deceased. At 10.30 p.m, he went to the place of occurrence and prepared Ext.P3 scene mahazar. As per Ext.P3, he recovered M.O.16 blood stained soil, M.O.2 cap and also the motorcycle bearing registration No.KL-61390. He recorded the statement of witnesses and then he filed Ext.P14 report before court giving full details of accused persons and also seeking to have Sections 341 and 323 of Indian Penal Code incorporated. The dress **Crl. Appeal No.1475/2011** **5** worn by PW1 was recovered as per Ext.P4 mahazar on 20.10.2002. 6. Subsequent investigation was conducted by PW23 Anil Kumar, Circle Inspector of Police whose appearance was not available at the relevant time as he was taken ill and PW22 spoke about certain investigational acts done by the said officer. The recovery of weapon as per Ext.P7(a) confession statement in pursuance to Ext.P7 mahazar was spoken to by PW22. The dress surrendered by the second accused was seized as per Ext.P8 mahazar. The houses of first and second accused were searched as per Exts.P15 and P16 search memorandums. The said Anil Kumar prepared the forwarding note and sent it to court. 7. It is seen from the records that on a subsequent posting date, the above referred Anil Kumar was able to attend the court and he spoke about the investigation done by him. **Crl. Appeal No.1475/2011** **6** 8. Investigation was completed by the successor in interest of PW23 who, after completing investigation, laid charge before court. 9. The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thodupuzha. The said court made over the case to 3[rd] Additional Sessions Court (Adhoc-I), Thodupuzha for trial and disposal. On receipt of records and on appearance of accused before the said court, charge was framed for the offences under Sections 341, 323, 307, 302 read with Section 34 IPC. 10. Since the accused pleaded not guilty to the charge, the prosecution examined PWs 1 to 23 and had Exts.P1 to P29 marked. M.O.s 1 to 16 were got identified and marked. 11. After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in **7** ## **Crl. Appeal No.1475/2011** evidence against him and maintained that he is innocent. 12. Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He examined DW1. 13. The court below presumably acting on the evidence of PWs 1 and 3 who spoke about the incident and whose evidence was found to be cogent and convincing taken along with the evidence of PW8 who had occasion to take the accused in his autorickshaw found the accused guilty of the offences levelled against him. The first accused was therefore convicted and sentenced to suffer simple imprisonment for one month and to pay a fine of Rs.250/- with default clause of simple imprisonment for five days for the offence under Section 341 IPC. He was also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- with default clause of rigorous imprisonment for one month for the offence under Section 307 IPC and he was sentenced to imprisonment for life and to pay a **Crl. Appeal No.1475/2011** **8** fine of Rs.10,000/- with default clause of rigorous imprisonment for two months for the offence under Section 302 IPC. The sentences were directed to run concurrently. If appropriate Government exercises its powers under Section 433 Cr.P.C, set off as per law will be granted. 14. Assailing the conviction and sentence, learned counsel appearing for the appellant contended that there has not been fair appreciation of evidence in the case and the court has mechanically acted on the evidence of PWs 1 and 3 to hold the accused guilty. The inherent probabilities of the case have been lost sight of and it is inconceivable that a person would simply stab the other person without any reason whatsoever. The sequence of events as pointed out by the prosecution is not convincing and the prosecution has concealed more than what PW1 has revealed and that is sufficient to doubt the prosecution story. It was very vehemently contended that PW1 has not spoken in terms of Ext.P1 **Crl. Appeal No.1475/2011** **9** First Information Statement and he has deviated a lot thereby making his evidence open to serious doubt. 15. Learned counsel appearing for the appellant also pointed out that it is inconceivable that the second accused would restrain the deceased by catching hold of his collar and immediately thereafter without any reason whatsoever, the first accused would stab the deceased and also caused injury to PW1. According to the learned counsel, something must had happened between the persons which must have provoked the accused persons to act in the manner they did and that has been successfully concealed by the prosecution. This aspect of the case has been lost sight of and that has caused considerable prejudice to the accused. At any rate, learned counsel pointed out that there is no case for the prosecution that it was a pre-intended or premeditated act and it is clear from the evidence on record that it was a sudden act committed by the first accused and if that be so, the act squarely falls within the ambit of **Crl. Appeal No.1475/2011** **10** Exception 4 to Section 300 IPC and it means that the offence can only be brought under Section 304 Part II IPC. 16. According to the learned counsel for the appellant, the court below was not justified in placing implicit faith on the evidence of PW1. At any rate, according to the learned counsel, the conviction for the offence under Section 307 IPC was quite uncalled for considering the nature of injury suffered by PW1. There was no intention to cause such an injury and it occurred as a result of brandishing of knife and it was an unintended act and the injury so caused is not severe so as to warrant a conclusion that the act would fall within the ambit of Section 307 IPC. 17. Learned Public Prosecutor, on the other hand, pointed out that this is an open and shut case where the evidence speaks for itself and there is nothing to be interfered with. PW1 and the deceased had behaved in a gentlemanly manner. They were successful **Crl. Appeal No.1475/2011 11** in persuading the first and second accused to come out of the bar when the employees of the bar asked them to move out. This was of course against the will of the first and second accused who were reluctant to move out of the bar. 18. Learned Public Prosecutor drew the attention of this Court to the evidence of PW1 and pointed out that after they came out of the bar, PW1 and the deceased were moving towards their motorbike to go home and suddenly the second accused caught hold of the collar of the deceased facilitating the first accused to inflict a blow on the deceased. Not satisfied with the same, first accused inflicted injury on PW1 also. There is nothing to indicate, according to the learned Public Prosecutor, that any provocation was offered or any fight was intended or any threat was meted out either by the deceased or by PW1 so as to cause an apprehension in the mind of accused persons of any danger. It was quite an uncalled for act and the learned Public Prosecutor **Crl. Appeal No.1475/2011** **12** pointed out that the blow inflicted on the deceased was on the vital part of his body with tremendous force using dangerous weapon. At any rate, according to the learned Public Prosecutor, the act cannot escape from falling within Exception 4 of Section 300 IPC and the first accused must be credited with knowledge that inflicting of such injury will normally cause death of a person concerned. In short, the contention is that there are no grounds made out to interfere with the findings of the court below. 19. The first issue that arises for consideration is what is the cause of death of Sanal. That Sanal and PW1 had gone to Kothamangalam on 17.10.2002 and that they returned to their native places on 18.10.2002 is not much in dispute. PW1 has stated that on the way back to home when they reached Adimaly, it began to rain heavily forcing them to find a shelter and they found a shelter in a bar nearby and they went inside. The subsequent events have already been referred to. The crucial aspect **Crl. Appeal No.1475/2011** ## **13** is that after PW1 and the deceased persuaded the accused persons also to leave the bar, when PW1 and the deceased were about to mount the motorbike to leave the place, PW1 says that the second accused caught hold of the collar of the deceased and the first accused stabbed him. 20. PW5 has stated that receiving information about lying of two bleeding persons near Dhanya bar, he went to the place and had the injured taken to hospital and by the time he reached the hospital, one of the injured namely, Sanal was pronounced dead. PW22 had conducted inquest over the body of deceased from the Morning Star Hospital and drawn up Ext.P2 inquest report. He, in the said report, made mention of the injury found on the body. Autopsy was conducted by PW18 who prepared Ext.P11 postmortem certificate which shows the following injuries: 1. Incised penetrating wound, 5.5 x 2.5 c.m, obligue, on the right side of front of chest, upper inner end being 1.5cm to right of midline **Crl. Appeal No.1475/2011** **14** and 10cm below collar bone and the other end 3cm inner to right nipple in 3'O clock position. Both ends of the wound sharply cut. Right chest cavity was penetrated by cutting 3[rd] and 4[th] intercostal spaces, 4[th] costal cartilage and incised the inner margin of middle lobe of right lung, pericardium and penetrated into right atrium of heart after cutting its front wall. Right chest cavity contained 1550ml of fluid blood and pericardial cavity, 150ml of fluid blood; right lung was pale, and collapsed. The wound was directed backwards and to the left for a depth of 7.5cm. 2. Multiple small abrasions over an area, 1.7x1cm on left side of forehead, 6cm outer to midline and 1cm above eyebrow. 3. Abrasion, 1.5 x1cm, on left side of face, just outer to eye. 4. Abrasion, 4x2cm, on left side of face, just outer to nose. 5. Multiple small abrasions over an area, 2.5x1.5cm, on left side of face, just below lower lip. 6. Multiple small abrasions over an area, 2x1.5cm on the front of right knee. **Crl. Appeal No.1475/2011** **15** 7. Linear abrasion, 1cm long, on the back of left hand, 9cm below wrist. 8. Linear abrasion, 1.5cm long, on the back of left wrist. Air passages were pale. Left lung was oedematous and pale. Stomach was half full with unidentified food particles in a fluid medium with a spirit like smell, mucosa pale. Urinary bladder was empty. All other organs were pale, otherwise normal”. 21. PW18 in his evidence has categorically stated that injury was inflicted on the vital part of the body with sufficient force and the injury so inflicted is sufficient in the ordinary course to cause death. He also stated that injury No.1 which is the cause of death can be caused with the use of a weapon like M.O.1. In the light of such overwhelming evidence, it is beyond dispute that the death of Sanal was homicidal. 22. The next issue that arises for consideration is whether the prosecution has successfully established that it was the first accused who had inflicted fatal blow **Crl. Appeal No.1475/2011** **16** on the deceased and caused injury to PW1. For this, the prosecution mainly relies on the evidence of PWs 1, 3 and 8. Of course, there are several other witnesses examined to show that PW1 and the deceased had entered into the bar and they had left the bar taking the first and second accused along with them. But the crucial testimony are that of PWs 1, 3 and 8, among whom, PW1 had accompanied the deceased. In the light of the fact that these item of evidence are heavily relied on by the court below, it is only proper for this Court to refer to the same in detail. 23. The evidence of PW1 is to the effect that he is a resident of Vellathooval and runs a soda factory. He says that he along with his friend, the deceased, on 17.10.2002 had gone to the hospital at Kothamangalam to visit the father of one of their friends. Going by the version given by him, the deceased stayed back in the hospital while PW1 went to the Tharavad house of his brother's wife. On 18.10.2002, according to PW1, he and **Crl. Appeal No.1475/2011** **17** the deceased decided to return home. While they were going along in the motorbike bearing registration No.KL6-1390, since it began to rain heavily, they were forced to take shelter immediately and they entered into a nearby bar namely, Dhanya bar to have their dinner. However, they were unfortunate that Dhanya bar did not have food to serve them and they had to be satisfied with drinks. They happened to notice that three persons were sitting around a table and they occupied the seats nearby and shortly thereafter by about 9.30p.m, the employees of the bar asked them to leave the place. Even though PW1 and the deceased were willing to do so, the three persons sitting near them were reluctant to leave the bar. PW1 says that he and his friend were able to persuade the other three persons to leave the bar and they did so. PW1 also says that the employees of the bar thanked them for having managed to make the three persons leave the bar who were reluctant to do so earlier. Further statement of PW1 is that while they were preparing to **Crl. Appeal No.1475/2011 18** mount the motorbike, one among the three persons namely, Biju (second accused) caught hold of the collar of PW1 and fisted on his back. While Sanal, the deceased, questioned the act of the second accused, he caught hold of the collar of Sanal and restrained him and thereafter the first accused Biju inflicted a stab on the chest of Sanal with a knife. Thereafter PW1 would say that the accused turned towards PW1 and threatened to do away with him and tried to stab him causing injury on his head. PW1 would say that he fell down and became unconscious, and when he regained consciousness, he found that Sanal was lying on the road. Though he tried to wake up Sanal, he was not successful. By the time, two Police Officers reached the spot and they removed Sanal to Adimaly Hospital in an autorickshaw and on examination, the doctor pronounced him dead. PW1 would say that he had gone to the Police Station and furnished Ext.P1 First Information Statement. This witness was cross examined at length by the defence counsel. He stood by his **Crl. Appeal No.1475/2011** **19** ground. 24. Learned counsel appearing for the appellant contended that there are considerable deviations and additions in the evidence of PW1. It was pointed out that the colour of the shirt said to have been worn by PW1 is stated to be different from what was recovered and that shows that PW1 was not speaking truth. Further, it is pointed out that in Ext.P1, PW1 had stated that one among the three who were sitting around one table had left the place before, which is given a go bye at the time of evidence and at the time of evidence he comes forward with a case that all the three left along with them. These inconsistencies have not been noticed by the court below and it is pointed out that going by the very version given by PW1, it is rather unbelievable and rather unconvincing. According to learned counsel, something must have been done by PW1 and the deceased which would have provoked the accused persons. Unfortunately for the defence, the so called **Crl. Appeal No.1475/2011** **20** contradictions and inconsistencies were not put to PW1 while he was in box or in other words, the portion which he deviated from Ext.P1 or additions which he made at the time of evidence were not specifically put to him and the inconsistencies, contradictions and omissions were not marked through him. In the light of the said fact, the so called contradictions and inconsistencies cannot be considered at all for the reason that it is well settled that if there is any contradiction, the said contradiction has to be brought to the notice of the person who made such a statement and explanation sought for. That has not been done in the case on hand. 25. Next is the evidence of PW3. PW3 is a resident of Adimaly. He is a casual labourer by profession. He claims to have seen the incident. He works in a shop during night hours. On the date of incident, he had no work. He therefore thought of going to Dhanya bar to consume liquor. The bar had been closed by the time he reached the place. He happened to see two persons **Crl. Appeal No.1475/2011** **21** wearing pants and coats standing near a motorbike. There were two other persons wearing dhoti and shirts nearby. According to him, he felt that wordily altercations were going on between the two. He says that he saw one of the persons in the dhoti and shirt catching hold of the collar of one among the person who was in pants and coat and the other person in the dhoti namely, first accused stabbing him. When the other person who was in pant and coat questioned the act of first accused, PW3 would say that the first accused turned towards him and said that he too would suffer the same fate and had caused injury on the other person also. He would say that both of them fell down. 26. PW3 too was cross examined at length. The main attack on the evidence of this witness is that he was a chance witness and no credence can be given to his evidence. He is a planted witness, according to the learned counsel for the appellant. It is unbelievable that his story of no work can be easily assimilated. Learned **Crl. Appeal No.1475/2011** **22** counsel also brought to the notice of this Court that being a person working nearby and frequently visiting the Dhanya bar, PW3 ought to have known that by 9.30 p.m, the bar would be closed, and therefore his statement that after 9.30 p.m he thought of going to Dhanya bar is not acceptable. This is sufficient to discredit him. Further he does not identify the assailants. 27. Like in the case of PW1, attention of PW3 was not drawn to any of his earlier statements. For the same reason as mentioned in the case of PW1, the above contention does not merit consideration at all. 28. Next is the evidence of PW8, an autorickshaw driver. According to PW8, while he was coming along the road, he happened to see two persons; one of them lying on the ground and the other trying to hide himself. PW8 would say that he called the person who was trying to hide and by that time the person who was lying on the ground had crawled into the auto. One of them said that they should be a dropped near the **Crl. Appeal No.1475/2011** **23** house of the second accused. Even though PW8 wanted to drop him before that, when he reached his house, two persons namely, first and second accused were not willing to get down and left with no option, he went along and dropped them near the house of the second accused. PW8 would say that the second accused had a knife with him. He also says that the second accused used the knife to cause damage to his autorickshaw and he received Rs.50/- as hire charges. 29. The importance of the evidence of PW8 is that even after the stabbing incident was over, the behaviour of accused persons were far from satisfactory. They were in a inebriated condition and were continuing to commit mischievous act. 30. Again, if any corroboration is required, that is furnished by Ext.P1 First Information Statement. PW1 has given evidence in terms of Ext.P1 and no contradiction and inconsistency has been brought out. If that be so, the First Information Statement which came **Crl. Appeal No.1475/2011** **24** into existence within a short span of time of incident and which is a contemporaneous document is entitled to considerable weight. Further, the recovery of M.O.1 knife based on Ext.P7(a) statement furnished by the first accused further corroborates the prosecution case. The knife was recovered at the instance of the first accused. 31. In the light of the above evidence, the court below was perfectly justified in coming to the conclusion that the injury inflicted on the deceased was quite an uncalled for one and he needs protection of any exemption or exception. 32. Faced with the above situation, as already noticed, learned counsel appearing for the appellant, relying on the decision of the Apex Court in _**K.Ravi Kumar** vs._ _**State of Karnataka**_ (Crl. Appeal No.2494/2014) dated 28.11.2014 and of the High Court of Delhi in _**Tayyab** vs._ _**State NCT of Delhi**_ (Crl. Appeal No.1061/2010) dated 21.11.2013, emphasised that since there is only one single stab and there was no evidence of **Crl. Appeal No.1475/2011 25** pre-meditation or intention to cause injury, the act of stabbing gets the protection under Exception 4 to Section 300 IPC and therefore the offence at worse be fall only under Section 304 Part II IPC. 33. A reading of _Ravi Kumar's case_ (supra) shows that there was sudden quarrel between the accused and the deceased which ultimately led the accused losing his mental balance and forcing to do the act in the manner in which he did. In paragraph 14 of the said decision, the Apex Court has held as follows: “14. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say **Crl. Appeal No.1475/2011** **26** conclusive evidence that the appellant had any pre-determined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful **Crl. Appeal No.1475/2011** **27** attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the post-mortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness”. 34. In the decision in Tayyab's case, the facts show that there was sudden fight between the assailant and the injured in which the assailant also received injuries as could be seen from paragraph 7 of the judgment. That shows that there was provocation from the side of the deceased. It is in that context the High Court of Delhi had occasion to hold that there being only a single stab injury, in the facts and circumstances of the case, the act would fall only within the ambit of Section 304 Part II IPC and decided accordingly. 35. Reliance was placed on the decision in _**Ankush Shivaji Gaikwad** vs._ _**State of Maharashtra**_ (AIR 2013 SC 2454) wherein also a single stab injury ## _**Ankush Shivaji Gaikwad** vs._ _**State of Maharashtra**_ **Crl. Appeal No.1475/2011** **28** alone was inflicted and the court, after considering various aspects, had formed the opinion that the act falls only within the ambit of Section 304 Part II IPC and found that on the basis of external injury noticed, it could not be said that the accused would have been responsible for the death of a person concerned. To be more precise, in paragraph 4, the Apex Court has stated the injuries caused to the deceased which read thus: “4. Post-mortem examination of the deceased revealed a contusion behind his right ear, a contusion on the right arm and an abrasion on the right ankle joint. Internal examination, however, showed that the deceased had sustained an internal injury to the temporal and occipital region under the scalp and a fracture on the base of the skull. Blood clots were noted in the brain tissues and the base of skull, besides internal bleeding. According to the doctor, the death was caused by the injury to the head.....”. 36. It is evident from the nature of external injuries stated therein that the assailant could not have **Crl. Appeal No.1475/2011** **29** intended the death of a person and the reason for death was internal injuries. It was in that context the Apex Court had occasion to hold, after referring to various decisions, that the act committed by the assailant would fall within the ambit of Section 304 Part II IPC. 37. In the decision in _**Santhosh** vs._ _**State of Maharashtra**_ ((2015) 7 SCC 641), the applicability of 4[th] clause of Section 300 IPC was considered. There, the facts indicate that the accused, in an inebriate condition, poured kerosene on his wife and set fire on her. She succumbed to the injuries. It could not be said that the accused had the necessary intention and knowledge and therefore the act could not fall within the ambit of Section 300 IPC at all and it could only be culpable homicide not amounting to murder. Repealing the above contention, it was held as follows: “13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the **Crl. Appeal No.1475/2011** **30** act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death”. 38. In the case on hand, though it may be said that first and second accused were in high spirits, they were not in such a condition that they were not aware of the consequence of their act. The second accused, who caught hold of the deceased and facilitated the first accused, who stabbed him, cannot be treated as a person who was unaware of the consequences of the act. 39. Though an attempt was made to bring it under Exception 4 to Section 300 of I.P.C., that also cannot stand for the reasons already discussed. 40. Coming to the facts of this case, there is nothing to show that there was any sudden fight or quarrel between the deceased and the accused persons. **Crl. Appeal No.1475/2011** **31** Learned counsel for the appellant presumed that there must have been some incident without which the accused would not have acted in the manner they did. It is not a matter of presumption but it is a matter of proof. There is no suggestion to PW1 that there was any such incident which might have persuaded the accused persons to cause such injuries inflicted by first accused. In the decision in _**Ankush Shivaji Gaikwad** vs._ _**State of Maharashtra**_ (AIR 2013 SC 2454) on which reliance was placed by the learned counsel for the appellant, referring to the earlier decisions of the Apex Court, it was held in paragraph 23 as follows: “23. We may lastly refer to the decision of this Court in Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444: (AIR 2006 SC 3010: 2006 AIR SCW 4143) where this Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. This Court observed: **Crl. Appeal No.1475/2011** **32** “...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304, Part I or 304, Part II. Many petty or insignificant matters-plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304, Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a **Crl. Appeal No.1475/2011** **33** combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by - chance or whether there was any pre meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention...” (Emphasis supplied)”. **Crl. Appeal No.1475/2011** **34** 41. The Apex Court had very succinctly cataloged the various aspects which weighed the court to determine that the act complained of fall within the ambit of Section 304 Part II IPC. The theory that if there is only a single stab injury or single injury, the acts necessarily fall under Section 304 Part II IPC is given a go bye long ago. Merely because a single injury alone was inflicted, that may not be sufficient to take out of Section 300 IPC. Various other aspects like the weapon used, injury inflicted and the consequence thereof are to be considered. A person who inflicts an injury on the vital part of the body of another person with tremendous force using dangerous weapon must be credited with knowledge the consequence of his act. It is well settled that the said person must be presumed to know the consequence of his acts. 42. In the case on hand, recalling the facts, the act committed by the first and second accused was an uncalled for one and there is nothing to show that there is **Crl. Appeal No.1475/2011** **35** any mitigating circumstance. As far as the injuries are concerned, the injury on the deceased was a fatal one and on the vital part of the body using dangerous weapon and at any rate, the act of the first accused cannot but escape from falling within clause 4 of Section 300 IPC. We find no reason to take a different view from the view taken by the court below in this regard. However, we differ from the view taken by the court below regarding the offence under Section 307 IPC. The injury caused to PW1 is neither on the vital part of the body nor very severe so as to warrant a conclusion that the accused would be credited with knowledge that it is likely to cause death. It is only a simple injury. Though it may fall under Section 324 IPC, we cannot subscribe to the view of the court below that the act falls within the ambit of Section 307 IPC. We set aside the conviction and sentence for the offence under Section 307 IPC. This appeal is therefore partly allowed. While confirming the conviction and sentence for the offences **36** **Crl. Appeal No.1475/2011** under Section 302 and 341 IPC, we set aside the conviction and sentence for the offence under Section 307 IPC and instead the accused is convicted for the offence under Section 324 IPC and sentenced to suffer simple imprisonment for three months and to pay a fine of Rs.5,000/- in default of payment of which to suffer simple imprisonment for two months. **P.BHAVADASAN JUDGE** **RAJA VIJAYARAGHAVAN V JUDGE** smp