George @ Joy s/o Devasia v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940 **CRL.A.No. 424 of 2013** AGAINST THE JUDGMENT IN SC NO.383/2009 DATED 22.1.2013 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE I, KOTTAYAM. ## APPELLANT/ACCUSED: GEORGE @ JOY S/O.DEVASIA, MANJALIL HOUSE, THIRUVAMPADY KARA, NJEEZHOOR VILLAGE, KOTTAYAM DISTRICT. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA PIN - 682 031. BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2018, THE COURT ON 29.6.2018 DELIVERED THE FOLLOWING: **A.M.Shaffique & P. Somarajan, JJ. ---------------------------------------------------Crl. Appeal No.424 of 2013** ## **---------------------------------------------------Dated this the 29[th] day of June, 2018** ## **JUDGMENT** ## **P. Somarajan, J.** Appeal against the judgment of conviction and order of sentence for the offence under Section 302 of the Indian Penal Code in S.C.No.383 of 2009 of the Additional Sessions Court I, Kottayam, by the accused. 2. One deceased Varkey Esthappan and the appellant/ accused were friends. The prosecution case is that they went to a nearby toddy shop on 12.1.2009 and consumed toddy. The genesis of the incident commenced initially at the toddy shop wherein they had picked up quarrel by exchanging heated words and they went out of the toddy shop and had a scuffle. During the course of scuffle, the accused inflicted several stab injuries on the victim by using a knife and on his way to hospital, he succumbed to the injuries. The alleged incident took place by 8.45 p.m. on 12.1.2009. ## **Crl.Appeal No. 424 of 2013** :: 2 :: 3. The prosecution examined PW2 an occurrence witness to prove the complicity of accused. PW1 is the person who had given Ext.P1 FIS. But, he had only hearsay information regarding involvement of the assailant and the genesis of the alleged incident. PW3 is the salesman employed in the toddy shop who had seen the victim lying in a pool of blood just after the incident at the place of occurrence. PW9 is the Doctor who attended the victim. In fact, the victim was brought dead before PW9. The knife used for the commission of offence was also recovered at the instance of accused based on the disclosure statement alleged to have given while he was under custody. The occurrence witness PW2 had given a detailed picture regarding what actually transpired and happened between the accused and the victim on the ill-fated day. Nothing was brought out to discredit his evidence except a minor contradiction exhibited as D1. During his cross examination, questions were put up admitting the alleged incident and the scuffle between the accused and the victim and stabbing over the body of the victim by the accused. ## **Crl.Appeal No. 424 of 2013** :: 3 :: These questions were put up admitting the incident under the premise that the accused had inflicted the injury by way of private defence. The ocular evidence tendered by PW2, the occurrence witness, stands further corroborated by the medical evidence tendered through PW10 Doctor who conducted autopsy on the body of the deceased and issued Ext.P5 postmortem examination report. 4. The fatal injuries resulted in the death of the victim shown in the postmortem examination report as ante-mortem injury Nos.8, 10, 11, 12 and 13, which are as follows: - _“8. Stab wound on left side of front of chest 2.2x0.7 cm transverse, 4 cm outer to midline, 4.5 cm below inner end of left collar bone. The inner end blunt and outer end pointed. The wound pierced the chest wall at second intercostal space, entered the mediastinum and made a cut on the beginning of arch of aorta 1.5 cm. the pericardial sac contained 350 ml. of blood and blood clots. The wound directed downwards, backwards and towards right for a total depth of 8.5 cm._ _10. Stab wound on left side of chest 2.3x0.5 cm. vertical 12.5 cm. outer to midline, 3 cm. above 9[th] costal cartilage._ ## **Crl.Appeal No. 424 of 2013** :: 4 :: _Lower end tailed for a length of 6 cm. upper end blunt. The wound entered into peritonial cavity towards right and made a cut on right lobe of liver 1.9x0.5x2.5 cm. directed backwards, through 7[th] intercostal spaces. Total minimum depth assessed to be 6.5 cm._ _11. Stab wound on left side of chest 2x0.5 cm. vertical upper end blunt lower end pointed with tailing for a length of 4.5 cm towards right. The wound situated at 9[th] costal cartilage region. The wound made a cut on liver 1.9x0.5x3.5 cm. directed backwards and towards left for a total minimum depth of 9 cm._ _12. Stab wound on front of right side of abdomen 1.9x0.5 cm vertical upper end blunt, lower end pointed with a tailing of 2 cm. downwards, the wound situated 1 cm. inner and 0.5 cm below injury No.11. The wound entered the peritonial cavity and made a nick on lower margin of liver 0.5x0.5 cm._ _13. Stab wound on right side of abdomen 1.9 cm. long 0.5 cm broad, upper end blunt, lower end pointed with a tailing outwards and downwards for a length of 3 cm. 11 cm. above top of hip bone 14.5 cm. outer to front midline entered the peritonial cavity.”_ 5. The Doctor opined that injury Nos.8, 10, 11, 12 and 13 can be produced by the impact of a weapon like MO1. The ## **Crl.Appeal No. 424 of 2013** :: 5 :: ocular evidence given by PW9 Doctor who attended the victim on the same day within two hours and the ocular evidence given by PW3 would also support the oral evidence tendered by PW2. The admission made by the accused during cross examination of PW2 admitting the entire incident and stabbing on the body of the deceased and the ocular evidence tendered through PW2 and other witnesses would certainly discharge the initial burden of the prosecution to prove the complicity of the accused in the alleged crime. 6. The death of the victim was due to the injury sustained on his chest and abdomen (injury Nos.8, 10, 11, 12 and 13). Then the question comes, whether the homicide would come under the purview of murder as contained in Section 300 IPC. The learned counsel for the appellant mainly focused his argument claiming benefit under Exception 2 to Section 300 IPC based on a minor injury alleged to have been caused to the accused during the course of alleged incident. But no document or satisfactory evidence was adduced in that ## **Crl.Appeal No. 424 of 2013** :: 6 :: behalf except the admission made by the investigating officer during the course of his examination that the accused had also sustained a minor injury on his head. The details of the injury or its nature are in darkness. It is now settled that the person who claims the benefit of any of the Exceptions to Section 300 IPC should prove it. It is upon the accused to prove that his action would come under the purview of any of the Exceptions to Section 300 IPC (See **Babulal Bhagwan Khandare and Another v. State of Maharashtra [(2005) 10 SCC 404]** ). A mere apprehension of danger to person or property would be enough to bring the defensive action under motion as envisaged under Exception 2 to Section 300 IPC. But the apprehension should be reasonable and well placed. There are six independent blows resulting in six injuries to the victim inclusive of five stab injuries, among them three are on the left chest pierced through inner body cutting the right lobe of liver and two are on the right abdomen cutting the peritoneal cavity. There is no sufficient evidence to show from whom the initial provocation came up. The victim was not at all armed ## **Crl.Appeal No. 424 of 2013** :: 7 :: with any weapon. It is the accused who was found armed with a weapon, a knife, at the time of alleged incident. The number of injuries inflicted which are on the vital part of the body of the deceased, the force applied and nature of injury and number of independent blows are crucial. What prompted and provoked the accused to unleash several fatal injuries to the victim with a sharp edged knife is still unknown. A mere scuffle alone is not sufficient to bring the action of the accused within the purview of Exception 2 to S.300 IPC. So the factual situation involved would not satisfy the ingredients which constitute Exception 2 to Section 300 IPC . 7. No case of benefit of Exception 4 to S.300 IPC was raised either at the time of trial or at the time of examination under Section 313 Cr.P.C., but there is only a slight difference between Exception 2 and 4 though both are different in its very nature. Even in the absence of a pleading it is well within the duty of the Court to consider any of the Exceptions available under Section 300 IPC. (See **Babulal Bhagwan Khandare** ## **Crl.Appeal No. 424 of 2013** :: 8 :: **and Another v. State of Maharashtra (supra))** . The initial burden is always on the prosecution to establish the non application of any of the Exceptions while fastening liability under Section 300 IPC. But it is the burden of the accused to prove the benefit under any of the Exceptions to Section 300 IPC. 8. The benefit of Exception 4 of Section 300 IPC can be invoked if death is caused :(a) without premeditation; (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. In order to claim the benefit of Exception 4 of Section 300 IPC, all the ingredients mentioned in it must be satisfied. Though there was a sudden fight and scuffle between the victim and the accused several stab injuries (ante-mortem injury Nos.8, 10, 11, 12 and 13) were inflicted on the vital part of the victim and there were six independent blows, among them five are on the vital part pierced through the body cutting inner vital parts (right ## **Crl.Appeal No. 424 of 2013** :: 9 :: lobe of liver and peritoneal cavity). The force applied, the weapon used - a single sharp edged knife, the place wherein injuries were inflicted, the number of injuries and the independent blows would sufficiently show that the accused had acted in a cruel and unusual manner taking undue advantage. 9. The Apex Court in **Babulal Bhagwan Khandare's case (supra)** explained what amounts to “undue advantage or has acted in a cruel and unusual manner” occurring in Exception 4 to Section 300 IPC. The relevant portion of the said judgment is extracted below for reference: _“Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (1993) 4 SCC 238) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had_ ## **Crl.Appeal No. 424 of 2013** :: 10 :: _taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs had come out. In view of the aforesaid factual position, Exception 4 to Section 300 IPC has been rightly held to be inapplicable.”_ 10. It was submitted by the learned counsel for the appellant that the number of injuries inflicted by the appellant by itself cannot be a decisive factor while testing whether it would come under the purview of Exception 4 to S.300 IPC and took support from a three Judge Bench decision of the Apex Court in **Atul Thakur v. State of Himachal Pradesh (2018 KHC 6019** ). The proposition laid down is that the number of injuries by itself will not be a decisive factor. That does not mean that the number of injuries or the independent blows are not relevant while considering the application of Exception 4 to S.300 IPC. When there are several independent blows on vital part with a sharp edged weapon to an unarmed victim, one after another, though happened in a heat of passion cannot be brought under the purview of Exception 4 to Section 300 IPC. ## **Crl.Appeal No. 424 of 2013** :: 11 :: 11. Another decision relied on by the accused drawn in **Rajinder v. State of Haryana ((2006) 5 SCC 425)** is really standing on a different footing as the accused after a declaration that he would teach a lesson to the victim shot on his right thigh and not on any vital part though the injury has ultimately caused his death. 12. In the instant case, the attack on the victim is not simply lying on its number but six independent blows struck on the vital part of the victim - three on the left chest, one after another, and two on the right abdomen, all the injuries pierced through the vital part of the victim and it was against an unarmed victim, though it was happened in a sudden fight and a scuffle, without any premeditation would satisfy that the accused had taken undue advantage and acted in a cruel and unusual manner and hence the ratio laid down by the Apex Court in _**Babulal Bhagwan Khandare's case**_ (supra) is squarely applicable in the instant case and it will not come under Exception 4 to S.300 IPC. Hence, the finding of guilt of ## **Crl.Appeal No. 424 of 2013** :: 12 :: accused for the offence punishable under S.302 IPC does not call for any interference by this Court. 13. The sentence awarded being the lessor one no interference is required. Hence, appeal fails. Appeal dismissed. **Sd/A.M. Shaffique Judge sd/P. Somarajan Judge** ahz/